|CUTTER V. WILKINSON (03-9877) 544 U.S. 709 (2005)
349 F.3d 257, reversed and remanded.
[ Ginsburg ]
[ Thomas ]
JON B. CUTTER, et al., PETITIONERS
WILKINSON, DIRECTOR, OHIO DEPARTMENT
REHABILITATION AND CORRECTION, et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE SIXTH CIRCUIT
[May 31, 2005]
Justice Ginsburg delivered the opinion of the Court.
Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 804, 42 U.S.C. § 2000cc1(a)(1)(2), provides in part: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest, and does so by the least restrictive means. Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of nonmainstream religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.1 They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise
in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith. Brief for United States 5.
For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide religions and that they are sincere in their beliefs. Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 833 (SD Ohio 2002).
In response to petitioners complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendments Establishment Clause. The District Court denied respondents motion to dismiss petitioners complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons, 42 U.S.C. § 2000cc1, violates the Establishment Clause. We reverse the Court of Appeals judgment.
This Court has long recognized
that the government may
accommodate religious practices
without violating the Establishment Clause.
Hobbie v. Unemployment Appeals Commn of
Fla., 480 U.S.
136, 144145 (1987). Just last Term, in Locke
v. Davey, 540
U.S. 712 (2004), the Court reaffirmed that there is
room for play in the joints between the Free Exercise and
Establishment Clauses, allowing the government to accommodate
religion beyond free exercise requirements, without offense to
the Establishment Clause. Id., at 718 (quoting
Walz v. Tax Commn of City of New York, 397 U.S. 664, 669
(1970)). At some point, accommodation may devolve into
an unlawful fostering of religion.
RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Courts precedents. Ten years before RLUIPAs enactment, the Court held, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878882 (1990), that the First Amendments Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise Clause did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. Id., at 874, 890. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Id., at 890.
Responding to Smith, Congress
enacted the Religious Freedom Restoration Act of 1993 (RFRA),
107 Stat. 1488, 42
U.S.C. § 2000bb et seq. RFRA prohibits
[g]overnment from substantially
burden[ing] a persons exercise of religion even if
the burden results from a rule of general applicability unless
the government can demonstrate the burden (1) is in
furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling
Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U.S.C. § 2000cc;3 §3 relates to religious exercise by institutionalized persons, §2000cc1. Section 3, at issue here, provides that [n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the government shows that the burden furthers a compelling governmental interest and does so by the least restrictive means. §2000cc1(a)(1)(2). The Act defines religious exercise to include any exercise of religion, whether or not compelled by, or central to, a system of religious belief. §2000cc5(7)(A). Section 3 applies when the substantial burden [on religious exercise] is imposed in a program or activity that receives Federal financial assistance,4 or the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. §2000cc1(b)(1)(2). A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. §2000cc2(a).
Before enacting §3, Congress documented, in hearings spanning three years, that frivolous or arbitrary barriers impeded institutionalized persons religious exercise. See 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Senator Hatch and Senator Kennedy on RLUIPA) (hereinafter Joint Statement) (Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.).5 To secure redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the compelling governmental interest/least restrictive means standard. See id., at S7774. Lawmakers anticipated, however, that courts entertaining complaints under §3 would accord due deference to the experience and expertise of prison and jail administrators. Id., at S7775 (quoting S. Rep. No. 103111, p. 10 (1993)).
Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPAs enactment, petitioners amended their complaints to include claims under §3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that §3 violates the Establishment Clause. 221 F. Supp. 2d, at 846. Pursuant to 28 U.S.C. § 2403(a), the United States intervened in the District Court to defend RLUIPAs constitutionality. 349 F.3d 257, 261 (CA6 2003).
Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that §3 conflicts with the Establishment Clause. 221 F. Supp. 2d, at 846848. As to the Acts impact on a prisons staff and general inmate population, the court stated that RLUIPA permits safety and securitywhich are undisputedly compelling state intereststo outweigh an inmates claim to a religious accommodation. Id., at 848. On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security. Ibid.
On interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the Court of Appeals for the Sixth Circuit reversed. Citing Lemon v. Kurtzman, 403 U.S. 602 (1971),6 the Court of Appeals held that §3 of RLUIPA impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights. 349 F.3d, at 264. Affording religious prisoners rights superior to those of nonreligious prisoners, the court suggested, might encourag[e] prisoners to become religious in order to enjoy greater rights. Id., at 266.
We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPAs institutionalized-persons provision, §3 of the Act, is consistent with the Establishment Clause of the First Amendment. 543 U.S. ___ (2004).7 Compare 349 F.3d 257, with Madison v. Riter, 355 F.3d 310, 313 (CA4 2003) (§3 of RLUIPA does not violate the Establishment Clause); Charles v. Verhagen, 348 F.3d 601, 610611 (CA7 2003) (same); Mayweathers v. Newland, 314 F.3d 1062, 10681069 (CA9 2002) (same). We now reverse the judgment of the Court of Appeals for the Sixth Circuit.
The Religion Clauses of the First Amendment provide: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nations people. While the two Clauses express complementary values, they often exert conflicting pressures. See Locke, 540 U.S., at 718 (These two Clauses are frequently in tension.); Walz, 397 U.S., at 668669 (The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.).
Our decisions recognize that there is room for play in the joints between the Clauses, id., at 669, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. See, e.g., Smith, 494 U.S., at 890 ([A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation .); Amos, 483 U.S., at 329330 (Federal Government may exempt secular nonprofit activities of religious organizations from Title VIIs prohibition on religious discrimination in employment); Sherbert v. Verner, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting) (The constitutional obligation of neutrality is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. (citation omitted)). In accord with the majority of Courts of Appeals that have ruled on the question, see supra, at 78, we hold that §3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.
Foremost, we find RLUIPAs institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 705 (1994) (government need not be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice); Amos, 483 U.S., at 349 (OConnor, J., concurring in judgment) (removal of government-imposed burdens on religious exercise is more likely to be perceived as an accommodation of the exercise of religion rather than as a Government endorsement of religion). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); and they must be satisfied that the Acts prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel, 512 U.S. 687.8
[T]he exercise of religion often involves not only belief and profession but the performance of physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine . Smith, 494 U.S., at 877. Section 3 covers state-run institutionsmental hospitals, prisons, and the likein which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. 42 U.S.C. § 2000cc1(a); §1997; see Joint Statement S7775 (Institutional residents right to practice their faith is at the mercy of those running the institution.).9 RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the governments permission and accommodation for exercise of their religion.10
We note in this regard the Federal Governments accommodation of religious practice by members of the military. See, e.g., 10 U.S.C. § 3073 (referring to Army chaplains); Katcoff v. Marsh, 755 F.2d 223, 225229 (CA2 1985) (describing the Army chaplaincy program). In Goldman v. Weinberger, 475 U.S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, there is simply not the same [individual] autonomy as there is in the larger civilian community. Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that a member of the armed forces may wear an item of religious apparel while wearing the uniform, unless the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative. 10 U.S.C. § 774(a)(b).
We do not read RLUIPA to elevate accommodation of religious observances over an institutions need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In Caldor, the Court struck down a Connecticut law that arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath. 472 U.S., at 709. We held the law invalid under the Establishment Clause because it unyielding[ly] weigh[ted] the interests of Sabbatarians over all other interests. Id., at 710.
We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a compelling governmental interest standard, see supra, at 5, [c]ontext matters in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003).11 Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Acts standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources. Joint Statement S7775 (quoting S. Rep. No. 103111, p. 10 (1993)).12
Finally, RLUIPA does not differentiate among bona fide faiths. In Kiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment Clause, 512 U.S., at 690, in part because it single[d] out a particular religious sect for special treatment, id., at 706 (footnote omitted). RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.
The Sixth Circuit misread our precedents to require invalidation of RLUIPA as impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights. 349 F.3d, at 264. Our decision in Amos counsels otherwise. There, we upheld against an Establishment Clause challenge a provision exempting religious organizations from Title VIIs prohibition against discrimination in employment on the basis of religion. 483 U.S., at 329. The District Court in Amos, reasoning in part that the exemption improperly single[d] out religious entities for a benefit, id., at 338, had declared the statute unconstitutional as applied to secular activity, id., at 333. Religious accommodations, we held, need not come packaged with benefits to secular entities. Id., at 338; see Madison, 355 F.3d, at 318 (There is no requirement that legislative protections for fundamental rights march in lockstep.).
Were the Court of Appeals view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U.S.C. § 774 as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate traditionally recognized religions, 221 F. Supp. 2d, at 832: The State provides inmates with chaplains but not with publicists or political consultants, and allows prisoners to assemble for worship, but not for political rallies. Reply Brief for United States 5.
In upholding RLUIPAs institutionalized-persons provision, we emphasize that respondents have raised a facial challenge to [the Acts] constitutionality, and have not contended that under the facts of any of [petitioners] specific cases [that] applying RLUIPA would produce unconstitutional results. 221 F. Supp. 2d, at 831. The District Court, noting the underdeveloped state of the record, concluded: A finding that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates cannot be made at this juncture. Id., at 848 (emphasis added).13 We agree.
For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners. Brief for United States 24 (citation omitted). The Congress that enacted RLUIPA was aware of the Bureaus experience. See Joint Statement S7776 (letter from Department of Justice to Senator Hatch) ([W]e do not believe [RLUIPA] would have an unreasonable impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system.). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.14
Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.
For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1. Petitioners Cutter and Gerhardt are no longer in the custody of the Ohio Department of Rehabilitation and Correction. Brief for Petitioners 2, n. 1. No party has suggested that this case has become moot, nor has it: Without doubt, a live controversy remains among the still-incarcerated petitioners, the United States, and respondents. We do not reach the question whether the claims of Cutter and Gerhardt continue to present an actual controversy. See Steffel v. Thompson, 415 U.S. 452, 459460, and n. 10 (1974).
2. RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. See OBryan v. Bureau of Prisons, 349 F.3d 399, 400401 (CA7 2003); Guam v. Guerrero, 290 F.3d 1210, 12201222 (CA9 2002); Kikumura v. Hurley, 242 F.3d 950, 958960 (CA10 2001); In re Young, 141 F.3d 854, 858863 (CA8 1998). This Court, however, has not had occasion to rule on the matter.
3. Section 2 of RLUIPA is not at issue here. We therefore express no view on the validity of that part of the Act.
4. Every State, including Ohio, accepts federal funding for its prisons. Brief for United States 28, n. 16 (citing FY 2003 Office of Justice Programs & Office of Community Oriented Policing Services Grants by State).
5. The hearings held by Congress revealed, for a typical example, that [a] state prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food. Hearing on Protecting Religious Freedom After Boerne v. Flores, before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. 3, p. 11, n. 1 (1998) (hereinafter Protecting Religious Freedom) (prepared statement of Marc D. Stern, Legal Director, American Jewish Congress). Across the country, Jewish inmates complained that prison officials refused to provide sack lunches, which would enable inmates to break their fasts after nightfall. Id., at 39 (statement of Isaac M. Jaroslawicz, Director of Legal Affairs for the Aleph Institute). The Michigan Department of Corrections prohibit[ed] the lighting of Chanukah candles at all state prisons even though smoking and votive candles were permitted. Id., at 41 (same). A priest responsible for communications between Roman Catholic dioceses and corrections facilities in Oklahoma stated that there was [a] nearly yearly battle over the Catholic use of Sacramental Wine for the celebration of the Mass, and that prisoners religious possessions, such as the Bible, the Koran, the Talmud or items needed by Native Americans[,] were frequently treated with contempt and were confiscated, damaged or discarded by prison officials. Id., pt. 2, at 5859 (prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa, Oklahoma).
6. Lemon stated a three-part test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. 403 U.S., at 612613 (citations and internal quotation marks omitted). We resolve this case on other grounds.
7. Respondents argued below that RLUIPA
exceeds Congress legislative powers under the Spending
and Commerce Clauses and violates the Tenth Amendment.
The District Court rejected respondents challenges under
the Spending Clause, Gerhardt v. Lazaroff, 221
F. Supp. 2d 827, 839849 (SD Ohio 2002), and the Tenth Amendment,
id., at 850851, and declined to reach the Commerce
tion, id., at 838839. The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents further arguments. See 349 F.3d 257, 259260, 269 (2003). Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States choices are not subject to congressional oversight. See Brief for Respondents 9, 2533; cf. Madison v. Riter, 355 F.3d 310, 322 (CA4 2003). Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here. See F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 155, 175 (2004); United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 494 (2001). But cf. post, at 12, n. 2 (Thomas, J., concurring).
8. Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmates devotional accessories. See, e.g., Charles v. Verhagen, 348 F.3d 601, 605 (CA7 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil).
9. See, e.g., ibid. (prisons regulation prohibited Muslim prisoner from possessing ritual cleansing oil); Young v. Lane, 922 F.2d 370, 375376 (CA7 1991) (prisons regulation restricted wearing of yarmulkes); Hunafa v. Murphy, 907 F.2d 46, 4748 (CA7 1990) (noting instances in which Jewish and Muslim prisoners were served pork, with no substitute available).
10. Respondents argue, in line with the Sixth Circuit, that RLUIPA goes beyond permissible reduction of impediments to free exercise. The Act, they project, advances religion by encouraging prisoners to get religion, and thereby gain accommodations afforded under RLUIPA. Brief for Respondents 1517; see 349 F.3d, at 266 (One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statutes benefits.). While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as benefits. For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet a fruit, a vegetable, a granola bar, and a liquid nutritional supplementeach and every meal. Protecting Religious Freedom, pt. 3, at 38 (statement of Jaroslawicz). The argument, in any event, founders on the fact that Ohio already facilitates religious services for mainstream faiths. The State provides chaplains, allows inmates to possess religious items, and permits assembly for worship. See App. 199 (affidavit of David Schwarz, Religious Services Administrator for the South Region of the Ohio Dept. of Rehabilitation and Correction (Oct. 19, 2000)) (job duties include facilitating the delivery of religious services in 14 correctional institutions of various security levels throughout Ohio); Ohio Dept. of Rehabilitation and Correction, Table of Organization, available at http://www.drc.state.oh.us/web/DRCORG1.pdf (department includes Religious Services division) (as visited May 27, 2005, and available in Clerk of Courts case file); Brief for United States 20, and n. 8 (citing, inter alia, Gawloski v. Dallman, 803 F. Supp. 103, 113 (SD Ohio 1992) (inmate in protective custody allowed to attend a congregational religious service, possess a Bible and other religious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp. 189, 238 (ND Ohio 1976) (institutional chaplains had free access to correctional area)).
11. The Sixth Circuit posited that an irreligious prisoner and member of the Aryan Nation who challenges prison officials confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U.S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPAs compelling-interest standard. 349 F.3d, at 266 (citing Madison v. Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the governments countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same).
12. State prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies. See 42 U.S.C. § 2000cc2(e) (nothing in RLUIPA shall be construed to amend or repeal the Prison Litigation Reform Act of 1995); §1997e(a) (requiring exhaustion of administrative remedies).
13. Respondents argue that prison gangs use religious activity to cloak their illicit and often violent conduct. The instant case was considered below on a motion to dismiss. Thus, the parties conflicting assertions on this matter are not before us. It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials expertise in this area. See supra, at 1213. Further, prison officials may appropriately question whether a prisoners religiosity, asserted as the basis for a requested accommodation, is authentic. Although RLUIPA bars inquiry into whether a particular belief or practice is central to a prisoners religion, see 42 U.S.C. § 2000cc5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoners professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457 (1971) ( [T]he truth of a belief is not open to question; rather, the question is whether the objectors beliefs are truly held. (quoting United States v. Seeger, 380 U.S. 163, 185 (1965))).
14. See supra, at 13, n. 12.