Sasnett v. Department of Corrections, 891 F. Supp. 1305 (W.D. Wisc. June 26, 1995) appeal pending. Citing RFRA and 1st Amendment, inmates challenged several internal prison procedures regulating the types and amounts of personal property they could possess. Prison argued that inmates' claims should be dismissed because: 1) RFRA was unconstitutional or 2) inmates had failed to allege deprivation of property "essential" to their free exercise and prison procedures furthered a compelling interest. Court denied defendants' motion on the free exercise issues, specifically ruling that RFRA was a valid exercise of Congress's powers under § 5 of the 14th Amendment.

Sasnett v. Sullivan, 908 F. Supp. 1429 (W.D. Wisc. December 1, 1995) appeal pending. On cross-motions for summary judgment, court considered proper interpretation and application of RFRA to inmate's claims that ban on jewelry-wearing and limitation on possession of publications violated the Act. Court rejected defendants' argument that plaintiffs could not meet initial substantial burden requirement unless they proved that their respective religions mandated the proscribed practices. After examining RFRA's legislative history and precedent, court adopted a "religiously motivated" standard, stating:

Adopting a religiously motivated test has its pitfalls . . . Courts may have a more difficult time weeding out potentially frivolous claims and the government will be forced to justify its practices under the stringent compelling interest standard on a more regular basis. But such is the price Congress decided the government should pay in order to preserve the individual religious freedoms this country views as essential to liberty . . . . Thus, I find that plaintiffs' exercise of religion is substantially burdened if they can show that the burdened conduct or practice is 1) motivated by a sincerely held religious belief and 2) significantly or meaningfully curtailed.

As to jewelry-wearing ban, court granted summary judgment to plaintiffs because ban was not the least restrictive means of furthering the compelling interest of prison safety. As to publication limitation, court granted summary judgment to defendants because limitation did not impose a substantial burden on religious exercise, but was merely a "partial limitation and a minor inconvenience." Court also found that plaintiff's objection to publication limitation failed under 1st Amendment analysis.

Shaheed v. Winston, 885 F. Supp. 861 (E.D. Va. May 5, 1995). Applying O'Lone v. Estate of Shabazz, court found prison's requirement that Nation of Islam members sign up before attending services and other limitations on services and ministers to be reasonably related to legitimate penological interests. Although court denied inmates' motion to amend their complaint to allege RFRA violations, it stated that plaintiffs would not have been able to show a substantial burden on free exercise. Finally, court found that, because prison's failure to accommodate Ramadan was negligent, not intentional, defendants weren't liable for such acts under 42 U.S.C.§ 1983.

Smith v. Commission of Fair Employment and Housing, 913 P.2d 909 (Cal. 1996). A landlord of four rental units refused to rent to unmarried couples because she believed that sex outside of marriage is a sin and that it would be a sin for her to rent to people who will engage in nonmarital sex on her property. An unmarried couple challenged the landlord's policy. The state's Fair Employment and Housing Commission ruled that the refusal to rent violated a state open-housing law's ban on marital status discrimination. A state appeals court overturned the agency's ruling, finding that RFRA supersedes the state housing laws. The California Supreme Court, however, reversed 4-3. The court noted that the California housing law was not directed against religious exercise but was a "religion-neutral law that happens to operate in a way" that burdens the landlord's religious beliefs. The court also stated that since the landlord's "religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital . . . she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood." The court also stated that to exempt the landlord from the state housing law would "necessarily impair the rights and interests of third parties."

Smith v. Elkins, 19 F.3d 29 (9th Cir. March 2, 1994). Muslim prisoner was disciplined for praying aloud in a foreign language. Court reversed district court's summary judgment for state and remanded for application of RFRA standard. Court noted that "Congress clearly intended to apply the Act retroactively." Other prison cases remanded for application of RFRA standard: Hinkle v. Arizona Department of Corrections, 1995 U.S. App. LEXIS 4186 (9th Cir. March 1, 1995)(prison regulation restricting opportunity to observe Native American religion to inmates with a) a substantial percentage of Indian blood and b) recognition as an Indian); Besh v. Dutton, 47 F.3d 1167 (6th Cir. February 17, 1995)(denial of access to sweat lodge, other articles of faith and opportunity to hold frequent, private Native American religious services); Jackson v. Lewis, 43 F.3d 1479 (9th Cir. December 15, 1994)(facts of inmate's claim not specified in opinion).

Snyder v. Murray City Corporation, 902 F. Supp. 1444 (D. Utah September 13, 1995). City refused to allow plaintiff to read his prayer during "reverence portion" of city council meeting, noting that plaintiff's prayer actually condemned council's practice of opening its meetings with prayer. This prompted plaintiff to claim RFRA and 1st Amendment violations. Court ruled plaintiff's claim was not based on a sincere religious belief, thus the city's actions did not place a substantial burden on plaintiff's religious exercise. Therefore, court did not reach the constitutional challenge to RFRA, but referred to the issue as "[t]he interesting problem of whether Congress can constitutionally establish an evidentiary standard of 'compelling interest' despite the Supreme Court's ruling in Smith."

South Jersey Catholic School Teachers Assoc. v. St. Teresa of the Infant Jesus Church Elementary School, 675 A.2d 1155 (N.J. App. 1996). Lay school teachers sought to invoke state labor law to require a church school to recognize group as bargaining agent. The school asserted RFRA, among other things. The court upheld the constitutionality of RFRA , but ruled against the school on the merits finding a compelling interest in enforcing "the fundamental right to organize and bargain collectively" under the state constitution.

State v. Miller, 538 N.W. 2d 573 (Wisc. Ct. App. August 3, 1995) Aff'd. on other grounds, 1996 WL 3334383 (Wis., June 19, 1996) (under state constitution). Citing 1st Amendment, Amish appealed order directing them to pay fine for violating statute that required them to display a red and orange triangular emblem on their horse-drawn buggies. Applying RFRA, court reversed judgment below, finding that the state had not demonstrated that requiring the emblem was the least restrictive manner of furthering traffic safety. Rejecting a challenge to RFRA's constitutionality, court stated that "[w]e agree with the analyses set forth in Belgard and Sasnett and conclude that RFRA violates no federal constitutional principles." In dissent, Judge Sunby stated:

I conclude that we may give weight to the intent of Congress in RFRA but the Act is not applicable in our decision-making processes either as a statute or an interpretation of the Free Exercise Clause. I would therefore consider that we are bound by the interpretations of the [U.S.] Supreme Court and not RFRA.

Judge Sunby also argued that "the crucial infirmity of RFRA" is that "it violates the principle of federalism embodied in the Tenth and Eleventh Amendments."

Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska May 13, 1994) cert. denied, 115 S. Ct. 460 (mem.) (1994). Court granted petition for rehearing, withdrew its original opinion and issued a new opinion. Consistent with its original opinion, court held that penalizing landlord for marital status discrimination did not violate landlord's free exercise rights. Court further stated that RFRA did not affect the outcome of the case because, even "[a]ssuming that [RFRA] is constitutional and applies," compelling state interests support the prohibition on marital status discrimination. In his dissent from denial of certiorari, Justice Thomas stated:

The decision of the Alaska Supreme Court drains the word compelling of any meaning and seriously undermines the protection for exercise of religion that Congress so emphatically mandated in RFRA . . . . Although RFRA itself is a relatively new statute, the state courts have already exhibited considerable confusion applying the Sherbert-Yoder test to the specific issue presented by this case. [citations omitted] . . . By itself, this confusion on an important and recurring question of federal law provides sufficient reason to grant certiorari in this case.

Compare Swanner with cases having similar fact patterns but different results: Smith v. Commission of Fair Employment and Housing, 30 Cal. App. 4th 1008 (Cal. Ct. App. May 26, 1994) modified and reh'g denied, 1994 Cal. App. LEXIS 649 (Cal. Ct. App. June 23, 1994) (order penalizing plaintiff landlord for marital status discrimination in housing served no compelling interest and thus violated 1st Amendment) and Attorney General v. Desilets, 636 N.E.2d 233 (Mass. July 14, 1994) (vacating lower court judgment and remanding case because, although landlords' free exercise rights were substantially burdened under RFRA, "[t]he summary judgment record does not establish that there is no disputed material fact" bearing on compelling interest question).

Tenacre Foundation v. INS, 78 F.3d 693 (D.C. Cir. Mar. 19, 1996). appeal pending. Christian Science Foundation which operated Christian Science nursing school claimed that INS adopted and interpreted regulations to preclude entry level nurses from obtaining non-immigrant worker visas in violation of RFRA and 1st Amendment. Court affirmed the district court's denial of Foundation's motion for injunctive relief. Although Foundation had shown a likelihood of success on claims based on administrative law, court ruled Tenacre failed to show that INS had adopted an unlawful policy and, therefore, "no basis presently exists for the issuance of a preliminary injunction."

In re Tessier, 1995 WL 736461 (Bankr. D. Mont. December 8, 1995) case settled (early 1996). Debtors filed Chapter 13 Plan that included a charitable contribution to their church of $100.00 per month, a practice debtors claimed was "integral" to, and required by, their faith. Although court found denial of Plan constituted a substantial burden that was not justified by a compelling interest under RFRA, it sustained Trustee's objection to debtors' charitable giving because it found RFRA unconstitutional. "[B]y setting for the courts a balancing test the Supreme Court has designated as judicially unworkable," court found that RFRA violates separation of powers and "the central holding of Smith." Also, upon noting that the 9th Circuit had held that there must be interference with a central religious tenet to constitute a substantial burden, court queried:

Upon whom may the court rely as an expert to decide how central this belief is to the individual litigant's religion -- priests, clerics, preachers, rabbis, mullahs, lamas_ If so, what credentials must a holy person possess to be recognized as an expert in matters of salvation_ Would a professorship in theology be sufficient_ Is the court to give any weight to the personal and doubtless idiosyncratic interpretation of scripture by the individual layperson/litigant before the bar_

Court further stated that the "religiously motivated" standard "results in a virtually identical analysis and result to the one propounded in Grahm [sic] [v. C.I.R., 822 F.2d 844, 852 (9th Cir. 1987][see supra, n.1]; the court must take the worshipers' position as factually presumed."

Thiry v. Carlson, 891 F. Supp. 563 (D. Kan. June 9, 1995) appeal pending. Citing RFRA and 1st Amendment, couple sought to temporarily enjoin defendants from condemning land for highway construction project because their stillborn baby was buried within parcel of land, and site held spiritual and religious significance for them. Court granted such relief during pendency of appeal because, even though condemnees had not shown substantial likelihood of success, they had made a strong showing of irreparable harm that would sufficiently outweigh the harm suffered by defendants if the injunction was issued.

Tilton v. Marshall, 1995 WL 453268 (Tex. August 1, 1995). Viewers of Rev. Tilton's television show who suffered physical ills and donated over $15,000 to him sued Tilton and two church entities alleging fraud, conspiracy and intentional infliction of emotional distress. Defendants claimed that refusing to dismiss tort claims against them or, at least, bar discovery order to produce tithing records constituted free exercise violations. Court refused to grant relief requested by defendants in writ of mandamus, finding no abuse of discretion in lower court's ruling. Court noted that RFRA was not yet implicated in the case because of the finding of no substantial burden on Tilton's free exercise. The dissenting opinions and the opinion concurring in part and dissenting in part forcefully argued the free exercise issues.

*Tinsley v. City of San Francisco, 1995 WL 302445 (N.D. Cal. May 11, 1995). Inmate alleged that city violated his 1st Amendment rights by defacing, destroying and refusing to sell to him property which was site of an Islam temple built in 1917. Court dismissed inmate's complaint, ruling that his allegations, "even when liberally construed, do not constitute a substantial burden or interference with a tenet that is central to [inmate's] religious doctrine. Simply put, [the inmate] may worship elsewhere."

United States v. Bauer, 1996 U.S. App. LEXIS 11460 (9th Cir. February 2, 1996). Rastafarians appealed on various grounds their convictions of conspiracy to manufacture and distribute marijuana and simple possession of marijuana. Court "focus[ed] on an issue of first impression: the interaction of [RFRA] with the claim of use by Rastafarians of marijuana for religious purposes." As to possession counts, court found error in lower court's failure to require the government to show that the application of the marijuana laws to the defendants was the least restrictive means of furthering a compelling governmental interest. As to conspiracy counts, court held that "the religious freedom of the defendants was not invaded" because "[n]othing before us suggests that Rastafarianism would require this conduct." Defendants may be retried on possession counts, court stated, at which time the government would be free to cross-examine them on whether they are in fact Rastafarians and to introduce evidence negating their claims.

United States v. Jim, 888 F. Supp. 1058 (D. Or. March 13, 1995). Member of Yakama Nation arrested for killing eagles claimed prosecuting him under statutes protecting such animals violated RFRA. Describing a substantial burden, court cited Graham v. C.I.R. and stated that the government must interfere with a "belief that is central to religious doctrine." Court found that government had compelling interests in preventing the decline of the golden eagle population and protecting bald eagles' slow recovery and that it was advancing those interests in the least restrictive manner. Thus, court ruled that the government need not exempt Jim and others who share his religious beliefs from the relevant statutes.

Van Dyke v. Washington, 896 F. Supp. 183 (C.D.Ill. August 3, 1995). Inmate claimed defendants violated his free exercise when they refused to recognize the Church of Jesus Christ, Christian (CJCC), an arm of the Aryan Nation, as a religious group and when they rejected CJCC publications. "To establish a free exercise claim," the court stated, the plaintiff must show that:

(1) he espouses a bona fide religion; (2) his beliefs are sincerely held; and (3) the desired activity is essential to the practice of his religion. Wisconsin v. Yoder, 406 U.S. 205 (1972). Only after this initial burden is met does the court inquire into the state's intrusion and a standard of review.

Court ruled defendants were entitled to qualified immunity from personal liability and money damages on these claims because, at the time the actions occurred, "it was not clearly established that the CJCC was a bona fide religion . . . . Indeed, . . . the question remains unsettled in 1995." Court also found that equitable relief on these claims was moot due to inmate's transfer. Thus, court declined to address the constitutional challenge to RFRA.

*Vernon v. City of Los Angeles, 27 F.3d 1385 (9th Cir. June 23, 1994) cert. denied, Nov. 14, 1994. Retired Assistant Chief of Police appealed grant of summary judgment in favor of city, claiming that his rights under the state and federal constitutions were violated in connection with the city's investigation of whether his religious views were having an impermissible effect on his work. Although the court noted the passage of RFRA, it affirmed the lower court's judgment, stating that the retired officer had failed to demonstrate a substantial burden on his free exercise rights because he complained of "mere subjective chilling effects with neither 'a claim of specific present objective harm [n]or a threat of specific future harm.'" (citations omitted)

*Weir v. Nix, 890 F. Supp. 768 (S.D. Iowa May 25, 1995). Court found that, except with respect to fundamentalist Christian inmate's inability to witness a baptismal ceremony, the various prison actions complained of (including group worship led by Protestant rather than fundamentalist, failure to provide Sunday worship, inability to take Bible into exercise yard) did not actually infringe upon or substantially burden inmate's free exercise under RFRA because these actions did not touch upon religious practices that were "mandated" by the faith and/or were "central" to a religious tenet.

Werner v. McCotter, 49 F.3d 1476 (10th Cir. March 14, 1995) cert denied, Thomas v. McCotter, 115 S. Ct. 2625 (June 26, 1995). Inmate appealed lower court judgment finding that defendants' denial of access to sweat lodge, ban on possessing a medicine bag, failure to provide access to Native American spiritual advisor or religious literature and various religious symbols of his faith did not violate RFRA. Court remanded inmate's claims for equitable relief regarding sweat lodge (which it described as "central and fundamental") and medicine bag, but denied claims regarding access to spiritual advisor, religious literature and symbols because they were "without factual merit" and also denied damage claims due to qualified immunity. Court analyzed the substantial burden issue in the following manner:

To exceed the substantial burden threshold, government regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a prisoner's individual beliefs, see Bryant [v. Gomez, supra]; must meaningfully curtail a prisoner's ability to express adherence to his or her faith; or must deny a prisoner reasonable opportunities to engage in those activities that are fundamental to a prisoner's religion, see Cruz v. Beto, 405 U.S. 319, 322 & n.2 (1972).

Western Presbyterian Church v. Board of Zoning Adjustment, 862 F. Supp. 538 (D.D.C. September 9, 1994). Church sought to enjoin city from enforcing zoning ordinance in way that would prohibit it from feeding homeless. Court entered a summary judgment for plaintiff, as well as a permanent injunction. Court ruled under RFRA that free exercise rights of church were substantially burdened and that city had not demonstrated a compelling interest. Court concluded that, "the city must refrain, absent extraordinary circumstances, from in any way regulating what religious functions the church may conduct."

Woods v. Commissioner Parker Evatt, 876 F. Supp. 756 (D.S.C. January 24, 1995). Court granted summary judgment to prison, finding that, even if prison substantially burdened Muslims' free exercise, furnishing the type of aid requested (including religious treatises and prayer rugs) would violate the Establishment Clause. Court also found that other prison action complained of did not amount to a substantial burden because none addressed deprivations of "fundamental tenants [sic]" of the Islamic faith. Court further noted that 11th Amendment immunity "may be abrogated by clear language in a statute, but such language was not contained in the RFRA." Thus it found that state employees sued in their official capacities were immune from claims for money damages. Court also noted that defendants sued in their individual capacities were entitled to qualified immunity for actions taken prior to RFRA's effective date. See also Salih v. Smith, 1994 U.S. Dist. LEXIS 19562 (D.Md. November 8, 1994)(11th Amendment barred Sunni Muslim's claims for money damages against prison employees in their official capacities, and defense of qualified immunity required court to analyze claims against prison officials in their individual capacities under O'Lone rather than RFRA); Barko v. Samuels, 1994 WL 747872 (D. Kan. January 5, 1994)(defendants entitled to qualified immunity defense for reasonable actions prior to passage of RFRA); Brown v. Robinson, 1994 U.S. Dist. LEXIS 19609 (N.D.Ind. December 1, 1994)(RFRA "inapplicable" to issue of qualified immunity because events in question occurred before RFRA's enactment).

In Re Young, 82 F.3d 1407 (8th Cir. May 6, 1996) Petition for rehearing en banc denied. In its analysis of RFRA's threshold requirements, court stated:

Assuming for purposes of analysis that courts can constitutionally determine the parameters of religious belief, what beliefs are important or fundamental, and whether a particular practice is of only minimal religious significance, defining substantial burden to include religiously motivated as well as religiously compelled conduct is consistent with RFRA's purpose to restore pre-Smith free exercise case law. [citation omitted]

The court held that recovering church members' religiously motivated tithes substantially burdened their free exercise of religion even though the church in question did not require tithing. The court also held that although the government has interests in "providing the debtor with a fresh start, efficiently administering bankruptcy cases, [and] protecting the interests of creditors," these interests are not compelling under RFRA.