Introduction: The following are summaries of free exercise cases that apply or discuss the Religious Freedom Restoration Act of 1993. This information is current as of June 26, 1996. The cases that have been added to the list since February 27, 1996 are italicized. We have not attempted to make this update a thorough catalog of all post-RFRA cases reported since October 9, 1995. Instead, this update summarizes some of the more noteworthy cases reported since that date. The Baptist Joint Committee and The First Church of Christ, Scientist, offer the RFRA case summaries with the understanding that they cannot guarantee their accuracy and that they are not rendering legal or other professional advice. Where relevant, this list also expands the discussion of the substantial burden analysis to give a more detailed picture of the confusion in the courts surrounding this analysis.

Abdur-Rahman v. Michigan Department of Corrections, 65 F.3d 489 (6th Cir. June 21, 1995). Inmate claimed prison's refusal to release him from work detail to attend religious services violated his free exercise. Court affirmed summary judgment for defendants because it found prison's actions did not violate 1st Amendment or RFRA: prison policy "did not affect an essential tenet" of his religion and denial of pass to attend services was based on security concerns.

Abordo v. Hawaii, 902 F. Supp. 1220 (D. Hawaii August 25, 1995). In its review of Native American inmate's 1st Amendment and RFRA claims, court upheld magistrate's findings that Congress acted within its authority under § 5 of the 14th Amendment when it enacted RFRA. Quoting Bryant v. Gomez, infra, court also affirmed finding "that a trier of fact could determine that the government prevented inmate from engaging in conduct central to his religion" by cutting his hair and therefore affirmed denial of summary judgment to defendants on this claim. Finally, court found defendants were entitled to qualified immunity with respect to RFRA claim against them in their individual capacities and that 11th Amendment barred claims for money damages against them in their official capacities.

Akbar-El v. Muhammed, 663 N.E. 2d 703 (Ohio Ct. App. June 28, 1995). Moorish Science Temple inmates appealed judgment denying their request that prison be required to permit them to conduct religious services separate from general "Islamic" services and to wear "fez" rather than officially sanctioned "tarbush." Court affirmed judgment below, finding no substantial burden under RFRA. Court noted that "the minor restrictions" placed upon inmates' free exercise "pale[d] in comparison to the substantial restrictions struck down in Sherbert and Yoder," and that legitimate state interests in security justified prison's actions.

Alameen v. Coughlin, 892 F. Supp. 440 (E.D.N.Y. July 19, 1995). Citing RFRA and 1st Amendment, court granted preliminary injunction to Sufi Muslim inmates who challenged prison ban on display and possession of certain dhikr beads. Court found inmates had demonstrated a substantial burden on their religious exercise and that prison was unlikely to succeed in establishing that ban was the least restrictive method of furthering its compelling interest in preventing gang violence. Although court quoted Hernandez v. C.I.R. for the proposition that, "it is not within the judicial ken to question the centrality of religious beliefs or practices," it also stated that, "to impose a substantial burden, government interference . . . must burden a belief central to a plaintiff's religious doctrine."

Allah v. Beyer, 1994 WL 549614 (D.N.J. March 29, 1994). Inmate sought preliminary injunction to prevent his interstate transfer, which he claimed would violate 1st Amendment "as defined by [RFRA]." Court granted summary judgment to defendants, finding that, while inmate's religious practices would be substantially burdened by the transfer, it was the least restrictive means of furthering the compelling state interest of prison security. Additionally, court observed that "[w]hile the constitutionality of Congress' attempt to dictate to the Supreme Court that it must reject its current interpretation of First Amendment's Free Exercise Clause in favor of a prior interpretation is questionable, this issue has not been raised here and we need not consider it. See also Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994)."

Allah v. Menei, 844 F. Supp. 1056 (E.D. Pa. February 23, 1994). Prisoner sued to establish opportunity to practice "Temple of Islam" faith. Defendants equated Temple of Islam with Nation of Islam for purposes of supplying facilities and chaplains. Applying RFRA, court ruled for inmate. Court noted that defendants' "bald allegation" of interest in maintaining order and discipline was insufficient to support a summary judgment motion.

Bass v. Grottoli, 1995 WL 565979 (S.D.N.Y. September 25, 1995). Jewish inmate claimed pattern of anti-Semitic harassment, deliberate interference with religious exercise and transfer in retaliation for exercise of RFRA and 1st Amendment rights. Court denied defendants' motion to dismiss, finding that, whether measured by RFRA or O'Lone standards, inmate had stated a claim. Court also denied defendants' motion to dismiss on (1) 11th Amendment grounds because defendants were sued in their individual capacities and (2) qualified immunity grounds because issue was one of fact for court. Thus, court declined to address constitutional challenge to RFRA, stating that "[u]ntil the facts are developed, such a constitutional attack is premature because resolution of the constitutional issue may not be necessary in this case."

Bauchman v. West High School, 900 F. Supp. 254 (D. Utah September 13, 1995), leave to amend denied, __ F. Supp. __(D. Utah May 30, 1996. Jewish student challenged constitutionality of various practices at her public school, including the singing of religious songs at graduation. Court dismissed student's claims, finding that practices at issue didn't violate 1st Amendment or RFRA. Noting that the student was permitted to be excused from any "offensive" choir activities, court stated that a burden on religion "must arise from state compulsion or coercion that puts substantial pressure on a religious adherent to deny his or her own religion or practice tenets of another set of beliefs. See Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995)." (other citations omitted) Thus court found no substantial burden on her religious exercise.

Belgard v. Hawaii, 883 F. Supp. 510 (D. Hawaii May 1, 1995)(amended order). Native American inmate sued, claiming violation of his free exercise rights and RFRA when the state deprived him of certain religious items, forced him to cut his hair and denied him access to a religious counselor. On motion for a temporary restraining order, court issued amended order finding that RFRA was constitutional. Court relied on § 5 of the 14th Amendment as a source of power for Congress to bind the states to the requirements of RFRA.

Bessard v. California Community Colleges, 867 F. Supp. 1454 (E.D. Cal. October 14, 1994). Court granted Jehovah's Witnesses' summary judgment motion, finding the state had not demonstrated that loyalty oath that was precondition for employment was the least restrictive means of furthering a compelling interest. Court described a substantial burden on religion as conditioning receipt of an important benefit upon conduct proscribed by a religious faith or denying such a benefit because of conduct mandated by religious belief (citing Thomas v. Review Board) and an interference with a tenet central to religious doctrine (citing Bryant v. Gomez, infra). Addressing a question of first impression, court stated: "all RFRA claims should be characterized in the same way for statute of limitations purposes" and found state's catchall statute of limitations (action must be commenced within 3 years after it accrues) the most appropriate one to apply to such claims.

Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. September 30, 1994). Pentecostal plaintiffs alleged that borough violated their free exercise rights by intentionally impeding access to their tent revival meetings. Court reversed summary judgment for borough, stating that district court's substantial burden analysis under RFRA was inappropriate "[b]ecause government actions intentionally discriminating against religious exercise a fortiori serve no legitimate purpose. . . ." The court remanded the issue for a determination of whether there was sufficient evidence of intentional targeting to resist summary judgment.

Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. October 23, 1995) cert. denied, 116 S. Ct. 1044 (March 4, 1996). High school students and their parents sought monetary and declaratory relief, alleging that they were compelled to attend an indecent AIDS/sex education program at public school and thus were deprived of various constitutional and statutory rights, including rights under Free Exercise Clause. Court affirmed dismissal of plaintiffs' claims. As to damage claims, court held: 1) "[w]hile RFRA clearly provides access to declaratory and injunctive relief against all laws burdening the free exercise of religion, we think it lacks the 'clear, strong and imperative' language necessary to create a retroactive [i.e., pre-RFRA's enactment] cause of action for monetary damages," 2) even if RFRA created a retroactive cause of action for monetary damages, plaintiffs' claim would be analyzed under Smith because "all the defendants with the possible exception of the School Committee [were] protected by qualified immunity" 3) claim was not a "hybrid" one -- there was neither a free exercise violation nor a violation of parents' rights to raise their children. Court specifically noted that, unlike Wisconsin v. Yoder, plaintiffs did not allege that the one-time compulsory attendance at the program "threatened their entire way of life." Finally, court rejected request for declaratory relief, finding plaintiffs were not likely to be subject to similar school activities again.

Bryant v. Gomez, 46 F.3d 948 (9th Cir. January 31, 1995)
(SEE NOTES 1 & 2 BELOW)
1 Inmate alleged that prison's refusal to hold "full" Pentecostal services violated RFRA. Court affirmed summary judgment for prison, finding that prison's refusal did not substantially burden inmate's free exercise because activities in which inmate wished to engage were not "mandated" by the Pentecostal religion. Other prison actions found not to substantially burden free exercise: *Rhinehart v. Gomez, 1995 WL 364339 (N.D. Cal. June 8, 1995)(mandatory tuberculosis testing didn't burden "essential element" of inmate's religion); Williams v. Sweeney, 882 F. Supp 1520 (E.D. Pa. April 17, 1995) ("conclusory averments" about denial of access to practice religious faith); *Robinson v. Klotz, 1995 U.S. Dist. LEXIS 717 (E.D. Pa. January 23, 1995)(disciplinary segregation of Muslim prisoner); *Davidson v. Davis, 1995 U.S. Dist. LEXIS 1696 (S.D.N.Y. February 14, 1995)(denial of access to Jewish chaplain); *Boone v. Commissioner of Prisons, 1994 U.S. Dist. LEXIS 10027 (E.D. Pa. July 21, 1994) (confiscation of some of inmate's religious documents, 15 day cell restriction and restrictions on group meetings); Brown-El v. Harris, 26 F.3d 68 (8th Cir. June 13, 1994), reh'g denied, July 21, 1994 (removal of Muslim inmate's name from special meal schedule after he broke fast, an action that did not "coerce" or "compel" inmate to violate his religious beliefs); Mack v. O'Leary, 1995 WL 12486 (N.D. Ill. January 9, 1995)(restrictions on Islamic prayer ritual that did not trespass on inmate's ability "to retain and worship the principle that is central to Islam"); Merritt-Bey v. Delo, 26 F.3d 127 (8th Cir. June 17, 1994)(denial of access to prison facilities and funds); Messina v. Mazzeo, 854 F. Supp 116 (E.D.N.Y. May 24, 1994) (refusal to provide Jewish inmate with access to kosher food when inmate did not inform prison that he required kosher food); Bates v. Oregon Department of Corrections, 1994 U.S. Dist. LEXIS 11423 (D. Or. August 11, 1994)(certain special procedures for religious minorities).

NOTE 1: In its description of a substantial burden on free exercise, this case quotes the following text originating from Graham v. Commissioner, 822 F. 2d 844, 850-51 (9th Cis. 1987) aff'd sub. nom Hernandez V. Commissioner, 490 U.S. 680 (1989):

The religious adherent . . . has the obligation to prove that a governmental [action] burdens the adherent's practice of his or her religion [by pressuring him or her to commit an act forbidden by the religion or] by preventing him or her from engaging in conduct or having a religious experience which the faith mandates. [citations omitted] This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.

NOTE 2: To conserve space, subsequent cases that quote or paraphrase this passage are marked with an asterisk (*) See also Abordo v. Hawaii, supra. However, cases that quote or paraphrase only one of the two sentences from the passage (i.e., only the notion of practices "mandated" by a religion or only the notion of beliefs that are "central" to a religion) are not marked with an asterisk, but the relevant language is reflected in the case summary.

Campbell-El v. District of Columbia, 874 F. Supp. 403 (D.D.C. December 23, 1994). Inmate, "Grand Sheik" of the Moorish Science Temple claimed certain prison regulations violated his rights under 1st Amendment and RFRA. Court denied defendants' motion to dismiss on free exercise issues and ruled that discovery must be conducted to augment these issues. See also Fuller v. White, 1994 WL 665379 (4th Cir. November 29, 1994)(remanded to "[g]ive[] [inmate] an opportunity to particularize [his] potentially cognizable claim" under RFRA).

Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. May 3, 1994). Court granted prisoners' motion for preliminary injunction allowing them limited authority to wear and display Santeria beads because it found inmates had demonstrated irreparable harm and a likelihood of success under RFRA or O'Lone/Turner standard. Citing Thomas v. Review Board, court noted that "subject[ing] religious belief to an evaluation process of the relative importance of the religious tenets [is] itself inimical to the First Amendment." Court declined to address constitutional challenge to RFRA but offered these comments on the issue:

Defendants have not cited any authority to support their argument that Congress may not provide greater protection to the rights recognized in the Constitution. While Congress may not diminish constitutionally protected rights by allowing for less protection than the Constitution mandates, it is not restricted to provide only the constitutional minimum. See Katzenbach v. Morgan, 384 U.S. 641, 651 n.10, 86 S. Ct. 1717, 1724 n.10, 16 L. Ed. 2d 828 (1966) (Congress has power to adopt measures to enforce the Fourteenth Amendment but it cannot "restrict, abrogate, or dilute" the amendment's guarantees).

See also Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (S.D.N.Y. May 3, 1994) (legal issues same as those presented in Campos).

Canedy v. Boardman, 16 F.3d 183 (7th Cir. February 8, 1994). Prisoner complained that a strip search by two female prison guards during a shake-down violated his right of privacy and his religious liberty as a Muslim. Court ruled for the prisoner, holding that lower court erred in dismissing his complaint. Court noted the passage of, but did not rely on, RFRA. The court observed that "[t]he constitutionality of [RFRA] . . . raises a number of questions involving the extent of Congress's power under Section 5 of the Fourteenth Amendment."

Celestial Church of Christ, Inc. v. City of Chicago, 1994 U.S. Dist. LEXIS 8380 (N.D.Ill. June 21, 1994). Church sued to enjoin city from enforcing state court injunction, arguing that zoning ordinance which was basis for state court order violated U.S. Constitution and RFRA. The court held that "this is an appropriate case for abstention." The court also ruled, however, that "in light of the RFRA's mandate regarding laws affecting religion, but at the same time in deference to the church's pending appeal in state court, a stay will be entered as to the church's complaint" and "[t]he church will be allowed the opportunity to present arguments in support of the position that the state appellate court is unable to address the issues raised by the RFRA."

Cheema v. Thompson, 61 F.3d 734 (9th Cir. August 1, 1995). Finding that "there ha[d] been no factual development as to the effect of the current order on safety or otherwise," court affirmed without prejudice lower court's order granting a temporary injunction to Khalsa Sikhs. Injunction allowed Sikh schoolchildren to wear kirpans (ceremonial knives) to school under certain safety restrictions. A dissenting judge argued that the district court's means of furthering the compelling interests at stake actually compromised those interests.

Church of Iron Oak v. City of Palm Bay, 868 F. Supp. 1361 (M.D. Fla. October 11, 1994). Relying on RFRA, Wiccan church members asked for a temporary restraining order to prevent city's enforcement board from 1) proceeding with a hearing on an alleged zoning violation by the church, and 2) continued surveillance of residence used as church meeting place. Court recognized that "vital freedoms [were] at stake," but ruled that the city must be permitted to consider the facts and interpret its own laws in light of constitutional precedents.

Council for Life Coalition v. Reno, 856 F. Supp. 1422 (S.D. Cal. July 6, 1994). "Pro-life" group sought preliminary injunction against enforcement of Freedom of Access to Clinic Entrances Act ("FACE"). Applying 1st Amendment and RFRA, the court dismissed plaintiff's complaint. Court found plaintiff had failed to demonstrate that FACE substantially burdened any person's free exercise and, even assuming such a burden was shown, that burden would represent the least restrictive means of furthering a compelling state interest. Other cases holding that FACE is constitutional and does not violate RFRA are United States v. Dinwiddie, 885 F. Supp. 1286 (W.D. Mo. March 21, 1995); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. February 13, 1995) cert. denied, October 2, 1995; Cheffer v. Reno, 55 F.3d 1517 (11th Cir. June 23, 1995)(finding no substantial burden because plaintiffs did not argue that their religion "required" them to block clinic entrances); Riely v. Reno, 860 F. Supp. 693 (D. Ariz. August 12, 1994); United States v. Brock, 863 F. Supp. 851 (E.D. Wis. September 23, 1994).

*Crosley-El v. Berge, 896 F. Supp. 885 (E.D. Wisc. August 24, 1995). Moorish Science Temple adherent claimed that attending general Muslim prison service was forbidden by his faith and sued under RFRA to force prison to provide separate Moorish services. Citing Bryant v. Gomez, supra, Werner v. McCotter, In re Newman and Woods v. Evatt, infra, court noted that a substantial burden had been defined in several different ways. Court concluded that inmate had made no showing that activities in which he wished to engage were religiously "mandated" or a "central tenet" of his faith and that he had "fail[ed] to provide any specific evidence that he [was] either being forced to do something his religion proscribes or required to refrain from doing something his religion commands." Thus, court granted summary judgment to defendants, finding no substantial burden on his religious exercise.

Curtis v. School Committee of Falmouth, 652 N.E.2d 580 (Mass. July 17, 1995) cert. denied, 116 S. Ct. 753 (January 8, 1996). Students and parents sought 1) reversal of judgment below that condom availability program in junior and senior high schools did not violate their free exercise rights and 2) injunction to prevent school from continuing program without parental opt-out and notification system. Court found no substantial burden on religious exercise, stating that the program "does not penalize students or parents for their religious beliefs or condition the receipt of benefits on a certain belief." Therefore, court found that neither Smith nor RFRA "add anything to the plaintiffs' case."