Andrew J. YELLOWBEAR, Jr., Plaintiff-Appellant,
Robert O. LAMPERT, Director, Wyoming Department of Corrections; Steve Hargett, Warden, Wyoming Medium Correctional Institution, individually and in their official capacities, Defendants-Appellees.
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Sean Connelly of Reilly Pozner LLP, Denver, CO, for Plaintiff-Appellant.
Melissa E. Westby, Senior Assistant Attorney General (Peter K. Michael, Attorney General, and John D. Rossetti, Deputy Attorney General, with her on the brief), Wyoming Attorney General's Office, Cheyenne, WY, for Defendants-Appellees.
Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District Judge.[*]
GORSUCH, Circuit Judge.
Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that
they are the reason he seeks access to his prison's sweat lodge— a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them— at least in the absence of a compelling reason. In this record we can find no reason like that.
Our story starts with Smith. In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that the Constitution's Free Exercise Clause does not exempt religious persons from the dictates of neutral laws of general applicability. The devout must obey the law even if doing so violates every article of their faith. When Smith was handed down, some worried that it upset existing free exercise doctrine dating back to Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In Sherbert and its progeny the Supreme Court had suggested that no law, not even a neutral law of general applicability, may " substantially burden" the exercise of religion unless that burden amounts to the " least restrictive means" of achieving a " compelling governmental interest." Smith, 494 U.S. at 883, 110 S.Ct. 1595; id. at 899, 110 S.Ct. 1595 (O'Connor, J., concurring in the judgment). What protections Sherbert appeared to afford religious observances, Smith appeared ready to abandon.
Concerned with just this possibility, worried that Smith left insufficient room in civil society for the free exercise of religion, Congress set about the business of " restoring" Sherbert, at least as a matter of statute. It opened its efforts with the Religious Freedom Restoration Act of 1993. See 42 U.S.C. § 2000bb(b)(1). Passed nearly unanimously, RFRA was (and remains) something of a " super-statute." Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S.Code, 56 Mont. L.Rev. 249, 253 (1995). It instructed that all forms of governmental action— state or federal— had to satisfy Sherbert 's test or risk nullification.
But as it turned out, this marked only the opening lines in what proved to be a long dialogue between Congress and the Court. In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court held that RFRA stretched the federal hand too far into places reserved for the states and exceeded Congress's Section 5 enforcement authority under the Fourteenth Amendment. As a result, the Court held RFRA unconstitutional as applied to the states, though still fully operational as applied to the federal government. See id. at 529-36, 117 S.Ct. 2157.
Undaunted, Congress reentered the field soon enough, this time with the Religious Land Use and Institutionalized Persons Act of 2000. In RLUIPA Congress invoked not just its Fourteenth Amendment but also its Spending Clause powers to (re)impose Sherbert 's balancing test on state action— though now state action in only two specific arenas, arenas in which Congress found the record of religious discrimination particularly clear and compelling. First, in the land use context, where churches are sometimes disfavored by local zoning boards because (among other things) church members are said to generate " too much" traffic or congestion or noise when they gather for communal expressions of faith. Second, in the prison
context, where it is so easy for governmental officials with so much power over inmates' lives to deny capriciously one more liberty to those who have already forfeited so many others. See Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 Fordham Urb. L.J. 1021, 1021, 1025-41 (2012); Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA's Prisoner Provisions, 28 Harv. J.L. & Pub. Pol'y 501, 510 & n.34 (2005). This time Congress acted unanimously and this time the Court upheld its effort, at least against a facial challenge under the Establishment Clause. See Cutter v. Wilkinson, 544 U.S. 709, 725, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison's existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison's sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is " unduly burdensome." Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.
At the end of the day, we find that's exactly the relief we must provide. 
RLUIPA may be a " super statute," capable of mowing down inconsistent laws, but to win its application takes no small effort. A plaintiff must carry at least two burdens, and even then can still lose if the government bears two burdens of its own.
Take the plaintiff's burdens first. RLUIPA requires us to ask whether an inmate's (1) religious exercise is (2) substantially burdened by prison policy. 42 U.S.C. § 2000cc-1(a). At the outset, then, RLUIPA requires the plaintiff to show a religious exercise. The law does not protect from governmental intrusion every act born of personal conscience or philosophical conviction. It protects only those motivated by religious faith— in recognition, no doubt, of the unique role religion, its free exercise, and its tolerance have played in the nation's history. See Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972);
Frazee v. Ill. Dep't of Emp't Sec.,
489 U.S. 829, 833-35, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989); United States v. Meyers, 95 F.3d 1475, 1482-84 (10th Cir.1996); Michael W. McConnell, The Origins and Historical Understanding of Free ...