Focus on Indian Law

Knight v. Thompson Revisited: Ramirez v. Collier’s Implications for Native Prisoners’ Religious Exercise

By Emily deLisle

Emily deLisle is a Cozen Voting Rights Fellow at the Native American Rights Fund in Washington, D.C. She graduated from the University of Pennsylvania Carey Law School in 2021. The U.S. Supreme Court’s March 24, 2022, decision in Ramirez v. Collier1 underscored the powerful protections the Religious Land Use and Institutionalized Persons Act (RLUIPA) can offer incarcerated people who seek religious exemptions from generally applicable prison policies. In many respects, Ramirez merely reaffirmed the approach to RLUIPA the Court had already adopted in its 2015 Holt v. Hobbs2 decision. But, seven years later, the Eleventh Circuit’s decision in Knight v. Thompson—a ruling inconsistent with RLUIPA’s plain meaning, the Supreme Court’s instructions on remand, and even the Eleventh Circuit’s own applications of RLUIPA in subsequent cases—continues to deny Native people incarcerated in nonfederal facilities the right to practice their faith, as non-Native prisoners enjoy. Ramirez provides an opportunity to address Knight’s discriminatory application of RLUIPA to claims by Native prisoners as well as the unjust state prison policies that Knight sanctions.

Congress passed RLUIPA two decades ago to establish “very broad protection for religious liberty.”3 RLUIPA, like the Religious Freedom Restoration Act (RFRA), establishes a strict-scrutiny-like framework, providing that once an incarcerated plaintiff demonstrates that prison policy or practice imposes a substantial burden on his religious exercise, the state must demonstrate that the policy as applied to that individual is the least restrictive means of furthering a compelling government interest.

But, in 2013, when the Eleventh Circuit considered RLUIPA claims brought by Native American prisoners against the Alabama Department of Corrections (ADOC) in Knight, its approach all but negated the statute’s narrow tailoring requirement. ADOC conceded that Alabama’s short hair requirement for male inmates substantially burdened the Native prisoners’ religious exercise. As the plaintiffs’ expert explained at trial, “hair has great religious significance for many Native Americans, and … forcing Native Americans to cut their long hair would amount to an ‘assault on their sacredness.’” It was also undisputed that the state defendants’ asserted interests in “security, discipline, hygiene[,] and safety within the prisons and in the public’s safety in the event of [prisoner] escapes,” were, in principle, “compelling.”4

The question, then, was whether ADOC had adequately demonstrated that a total prohibition on unshorn hair was the least restrictive means of furthering its interests. The Knight Court ruled that it had, thereby upholding ADOC’s policy and refusing the plaintiffs’ requested exemption permitting them to wear their hair unshorn. This decision rested on three questionable lines of reasoning.

First, the Eleventh Circuit extended an extraordinary degree of deference to the state defendants. The Knight Court’s analysis of RLUIPA’s narrow tailoring requirement elevated the Supreme Court’s dicta in Cutter v. Wilkinson—observing that some members of Congress had expected courts faced with RLUIPA claims to afford “due deference to the experience and expertise of prison and jail administrators”5—to a “deference mandate.”6 Applying this deferential standard, the Court concluded that a factual record that contained no statistical evidence and little relevant anecdotal evidence to establish the necessity of its categorical ban on long hair “amply support[ed]” ADOC’s position that there was no less restrictive method of protecting its asserted interests. Much of the defense’s testimony consisted of prison officials’ speculation about the theoretical risks of long hair on male prisoners. Witnesses stated that “prisoners could pull one another’s hair during fights” and “non-exempt inmates might attack exempted inmates out of jealousy for their special long-hair privilege” (emphasis added). The “most thorough defense of the ADOC’s hair length policy” came from a former prison director who “opined that his short-hair policy was a factor in his successful restoration of order and control in Virginia’s prison system.” He cited the “1999 escape of a … prison inmate who had cut his hair to alter his appearance”—

although the escapee was ultimately discovered a few days later—and one dramatic but apparently isolated “incident in which a black widow spider wove a nest in an inmate’s dreadlocks.”7

Second, the Court shifted the burden of demonstrating that there was no less-restrictive alternative to the exceptionless grooming policy from defendants, to whom it properly belonged, onto the incarcerated plaintiffs. “Plaintiffs cannot point to a less restrictive alternative that accomplishes the ADOC’s compelling goals,” the Court wrote, “and neither can we.”8

Third, the Court deemed irrelevant both other jurisdictions’ ability to allow long hair, and even Alabama’s own willingness to allow female inmates to wear their hair long, as evidence that Alabama could permit religious exemptions to its grooming policy for certain members of the male inmate population.9

The plaintiffs filed a petition for certiorari, but the Supreme Court held the petition until after its decision in Holt v. Hobbs, another RLUIPA case that raised strikingly similar issues. Holt concerned a Muslim inmate’s challenge to an Arkansas Department of Corrections policy that forbade him from growing the beard required by his faith. Ruling unanimously for the prisoner, the Supreme Court emphasized several aspects of RLUIPA’s burden on state defendants that directly contradicted the reasoning in Knight. The Holt Court explained that RLUIPA “does not permit ... unquestioning deference” to prison officials and cautioned that courts may not “abdicat[e] their responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard” to policies which burden prisoners’ religious exercise. It underscored that the practice of other jurisdictions necessarily bears on the narrow tailoring analysis, reasoning that “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course.” And it reiterated that state defendants, not incarcerated plaintiffs, bore the burden of demonstrating that no less-restrictive alternative to the challenged policy was possible.10

Holt also announced a new component of defendants’ burden that the Knight Court had not contemplated: that RLUIPA “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law [to the] … particular claimant whose sincere exercise of religion is being substantially burdened” (emphasis added).11

The Supreme Court vacated and remanded Knight for reconsideration in light of Holt. But the Eleventh Circuit refused to meaningfully revisit its earlier decision. It insisted that the Knight Court had not engaged in the sort of “‘unquestioning deference’ [to prison officials] that concerned the Holt Court.” It failed to address Holt’s command that a defendant like ADOC offer “persuasive reasons” why it must impose grooming policies far more restrictive than those imposed on inmates in other prison systems or elsewhere in its own system. And it similarly ignored Holt’s requirement that defendants show a compelling interest in applying the challenged policy to the particular Native religious practitioners who sought the exemption.12 The Eleventh Circuit then re-issued its original opinion in Knight virtually unchanged,13 and a second cert petition by the Knight plaintiffs was denied.

The gulf that Knight formalized between the religious freedoms available to Native and non-Native prisoners has only widened in the years since. In subsequent RLUIPA cases involving non-Native prisoners, the Eleventh Circuit has applied Holt’s more stringent interpretation of RLUIPA while declining to rely on Knight. In Smith v. Owens, for example, it recognized that “Holt calls for an individualized, context-specific inquiry that requires the GDOC [Georgia Department of Corrections] to demonstrate that application of the grooming policy to Smith [the RLUIPA claimant] furthers its compelling interests” (emphasis in original) before remanding the case to the Georgia district court to “analyze Smith’s RLUIPA claim as it relates to the GDOC’s revised grooming policy in a manner consistent with Holt v. Hobbs.”14 It cursorily distinguished Knight based on the “focused inquiry, factual findings, and extensive record” purportedly developed in that case.15 More recently, in Smith v. Alabama Department of Corrections, the Eleventh Circuit ruled in favor of a RLUIPA plaintiff who asserted that his Christian faith required his religious advisor to be with him in the execution chamber. It briefly distinguished Knight on the same grounds as it had in Smith v. Owens before invoking Holt to require Georgia prison officials to meet RLUIPA’s heavy burden of proof.16

But, despite Knight’s apparent limitation to its facts, the case remains a persistent obstacle to incarcerated Native Americans’ free exercise. All three states in the Eleventh Circuit—Alabama, Florida, and Georgia—maintain state prison policies that prohibit long hair and permit no religious exceptions. So, too, do Arkansas, Mississippi, South Carolina, and Texas.17 Holt, with its detailed consideration not only of RLUIPA’s requirements generally but of the particular balance of interests implicated where a prisoner seeks a religious exception from a prison grooming policy specifically, should have been enough to reverse Knight and strongly caution other states to allow religious exemptions to their own hair-length policies.18 (At least two states, Indiana and Idaho, have relaxed their total prohibitions on long hair since Holt. Idaho’s Department of Corrections manual now provides that prisoners may wear their hair at “any length,” so long as it is kept clean and neat.19) But even those jurisdictions that remained unmoved after Holt should take notice of Ramirez, which reinforces the aspects of Holt’s understanding of RLUIPA’s heightened scrutiny requirement that most sharply conflict with Knight.

Ramirez concerned a death row inmate whose Baptist faith required his pastor to be with him and audibly praying during his execution. He argued that the prison’s blanket rule prohibiting a religious advisor from praying out loud in the execution chamber impermissibly burdened his religious exercise under RLUIPA. An eight-justice majority agreed. The Court noted, with little discussion, that there was no basis for deference to the state or its prison officials. It did not so much as cite to Cutter, the 2005 Supreme Court decision that had mentioned deference and on which the Knight court had so heavily relied. In equally marked contrast to Knight, Ramirez found the fact that the “Federal Government and Alabama have recently permitted audible prayer or speech in the execution chamber” to be important evidence that Texas’s blanket ban on audible prayer was overly restrictive. It underscored Holt’s requirement that defendants “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.”20

The Ramirez majority also considered at length less restrictive methods the state might have employed to protect its asserted interests in an orderly and well-monitored execution process before concluding that the state had failed to satisfy its burden because it had not properly considered or explained the infeasibility of those alternatives.21

Ramirez joins Holt in a larger body of recent Supreme Court case law requiring heightened judicial review of government policies alleged to burden religious practice. This context only amplifies

the Supreme Court’s command—defied by the Eleventh Circuit in Knight—that lower courts approach religious liberty claims with exceptional solicitude.22

Knight was wrong on the day it was decided, and Ramirez further highlights its error. It is long past time to extend to Native American prisoners, in every part of this country, the same religious liberties courts guard so fiercely on behalf of those who follow more familiar faiths. 

Endnotes

1No. 21-5592, 595 U.S. ___ (Mar. 24, 2022). 2574 U.S. 352 (2015). 3Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 683 (2014). 4Knight v. Thompson, 723 F.3d 1275, 1280, 1282-83 (11th Cir. 2013). 5Cutter v. Wilkinson, 544 U.S. 709, 710 (2005). 6Knight, 723 F.3d at 1285. 7Id. at 1278-80, 84. 8Id. at 1285. 9Id. at 1285-86. 10574 U.S. 352, 364-65, 369 (2015). 11Id. at 363 (internal citations and quotation marks omitted). 12Knight v. Thompson, 796 F.3d 1289, 1292-93 (11th Cir. 2015) (en banc). 13The Court made just one minor and nonsubstantive change on remand. Compare Knight v. Thompson, 723 F.3d at 1285 (“Plaintiffs’ proposed alternative also does nothing to assuage the ADOC’s concerns about gang-formation and hair-pulling during fights ….”) with Knight v. Thompson, 797 F.3d 934, 945 (11th Cir. 2015) (adding the phrase “Alternatively, even assuming that the proposed alternative could eliminate the ADOC’s concerns as to concealment of weapons and contraband and inmate identification” to the sentence quoted above). 14848 F.3d 975, 981 (11th Cir. 2017). 15Id. 16844 F. App'x. 286, 293 (11th Cir. 2021). 17Texas maintains its exception-less policy on paper, although it has in at least one instance been enjoined from enforcing the rule against a Native American prisoner. Goodman v. Davis, No. 2:12-cv-00166 (S.D. Tex. Feb. 26, 2019), ECF No. 325. 18See Joel West Williams, The Impact of Holt v. Hobbs on Native American Inmates (Jan. 23, 2015), http://www.huycares.org/blog/ the-impact-of-holt-v-hobbs-on-native-american-inmates/. 19Idaho Dep't of Corr., Standard Operating Procedure: Hygiene of Inmates, Inmate Barbers, and Facility Housekeeping (Aug. 21, 1995), http://forms.idoc.idaho.gov/ WebLink/0/doc/281449/Page5.aspx. 20Ramirez v. Collier, 142 S. Ct. 1264, 1279-81 (2021). 21Compare id., at 1280-82 with Knight, 723 F.3d at 1286 (“RLUIPA asks only whether efficacious less restrictive measures actually exist, not whether the defendant considered alternatives to its policy.”). 22See, e.g., Hobby Lobby, 573 U.S. at 728-32 (government failed to satisfy RFRA’s “least restrictive means” prong); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1880-81 (2021) (government’s asserted interests insufficiently compelling to justify burden on plaintiffs’ rights under the Free Exercise Clause).

At Sidebar continued from page 8

21N.C. R. Pro. Conduct r. 3.8(d), Cmt. [2]. 22Ohio Rules of Pro. Conduct r. 3.8(d) (emphasis added). 23Of course, all of these rules, in whatever manner they are presented to prosecutors, should grab the attention of the reader, but these different approaches are interesting. 24Va. State Bar. Pro. Guidelines r. 3.8(d), supra note 9. 25Id. 26Id. 27Id. The guidelines further note, “[t]he Committee felt a change from existing DR 8-102(A)(4) concerning the disclosure of exculpatory evidence to the defense was appropriate by clarifying that it would apply only to that evidence which the prosecutor knows is exculpatory as opposed to a more subjective analysis of evidence which may be in the knowing possession of the prosecutor but which he does not have reason to believe would be exculpatory.” Id. at Committee Commentary. 28Just. Manual § 9.5001(B)(1), supra note 13. 29Just. Manual § 9.5002, supra note 13.