United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40216

____________

Keith M. Cole, 

Plaintiff—Appellant, 

versus

Bryan Collier; Texas Department of Criminal Justice; 

Mary Gilder; Bobby Lumpkin, Director, Texas Department of 

Criminal Justice, Correctional Institutions Division, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:20-CV-15 

______________________________

Before Wiener, Elrod, and Wilson, Circuit Judges. 

Jennifer Walker Elrod, Circuit Judge: 

Keith M. Cole adheres to the Bahaá’í faith. He is also a prisoner in 

the Texas Department of Criminal Justice. It is his sincerely held religious 

belief that he must eat non-pork meat with every meal. But TDCJ only 

provides non-pork meat in about two-thirds of its meals. Cole sued the prison

for violating his rights under the Religious Land Use and Institutionalized 

Persons Act. The district court held that TDCJ has a compelling interest in 

controlling costs and that its meal-selection policy was the least restrictive 

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2024

Lyle W. Cayce

Clerk

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means of furthering that interest. Because TDCJ provided no evidence 

supporting its compelling interest nor demonstrating that its current policy 

was the least restrictive means of furthering that asserted interest, we 

VACATE and REMAND for further proceedings consistent with this 

opinion.

I

Cole is incarcerated in the Stiles Unit of the Texas Department of 

Criminal Justice, Correctional Division. Cole is a devout member of the 

Bahá’í faith. As part of his faith, Cole believes that he must abstain from 

eating pork and that he is required to eat non-pork meat with every meal. The 

Texas Department of Criminal Justice does not provide non-pork meat for 

every meal that it serves. In fact, Cole maintains that approximately onethird of lunch and dinner meals do not contain non-pork meat. 

TDCJ provides three menu options for each meal: (1) a regular tray,

which includes all items offered in the serving line for that meal; (2) a meatfree tray, which excludes any meat in the serving line; and (3) a pork-free tray,

which excludes any pork that is offered in the serving line. Options (2) and 

(3) replace the excluded items with non-meat items such as cheese, beans, 

eggs, or peanut butter and jelly sandwiches. Importantly, TDCJ never 

replaces the excluded items with meat. 

In addition, inmates are able to purchase non-pork meat from the 

commissary using personal funds. Indeed, Cole supplemented his TDCJprovided diet with foods from the commissary including frequent purchases 

of non-pork meat. The cost of non-pork meat items at the commissary ranges 

from $0.95 (for a mackerel fillet) to $4.25 (for roast beef and gravy). Over 

the years, Cole has spent hundreds of his own dollars purchasing foods from 

the commissary in order to maintain his religious diet. And he expects to

continue to incur this expense under current TDCJ policy.

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II

After exhausting TDCJ’s “Offender Grievance Procedure,” Cole 

filed this lawsuit pro se against TDCJ and various TDCJ officials (Lorie 

Davis,1 Bryan Collier, and Mary Gilder).

2 He alleged violations of the 

Religious Land Use and Institutionalized Persons Act (codified at 42 U.S.C. 

§ 2000cc–1(a)) by TDCJ when it refused to provide him with non-pork meat 

for each meal as required by his sincere religious beliefs. Cole sought 

equitable relief but stated that he would accept any damages award that the 

court thought proper. 

Defendants moved for summary judgment, asserting that TDCJ 

policy did not substantially burden Cole’s exercise of his religious beliefs

because he could purchase non-pork meat from the commissary to 

supplement his meals. In the alternative, defendants argued without 

evidentiary support that TDCJ’s meal-selection plan is the least restrictive 

means of furthering a compelling interest in controlling resources and the 

cost of food service. 

The magistrate judge concluded that “Defendants have shown that 

they have a compelling interest in controlling its [sic] resources and the costs 

of food service, and their meal selection plan is the least restrictive means of 

accommodating various dietary needs of the entire inmate population.” 

Over Cole’s objection, the district court adopted the report and 

recommendation of the magistrate judge on March 24, 2023, noting that 

_____________________

1 Lorie Davis was the Director of the Texas Department of Criminal Justice, 

Correctional Institutions Division when Cole initiated this lawsuit. She has since been 

replaced by Bobby Lumpkin.

2 In his complaint, Cole states that he is suing Davis (now Lumpkin), Collier, and 

Gilder in their official capacities. In addition, Cole’s complaint references claims against 

Gilder in her individual capacity.

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“TDCJ’s food service policies further a compelling interest in controlling 

costs, and the policies are the least restrictive means to advance those 

interests.” The district court promptly entered Final Judgment, and Cole 

timely appealed. 

III

This court “reviews the district court’s summary judgment ruling de 

novo.” Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020) (citing 

Windham v. Harris Cnty., 875 F.3d 229, 234 (5th Cir. 2017)). Summary 

judgment is appropriate when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). When evaluating a motion for 

summary judgment, we “must view the evidence in the light most favorable 

to the nonmoving party and draw all reasonable inferences in that party’s 

favor.” Cadena, 946 F.3d at 723 (citing SEC v. Kahlon, 873 F.3d 500, 504 

(5th Cir. 2017)).

The Religious Land Use and Institutionalized Persons Act “prohibits 

a state or local government from taking any action that substantially burdens 

the religious exercise of an institutionalized person unless the government 

demonstrates that the action constitutes the least restrictive means of 

furthering a compelling governmental interest.” Holt v. Hobbs, 574 U.S. 352, 

356 (2015) (citing 42 U.S.C. § 2000cc–1). “RLUIPA thus protects 

institutionalized persons who are unable freely to attend to their religious 

needs and are therefore dependent on the government’s permission and 

accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 

709, 721 (2005). Specifically, RLUIPA states that:

No government shall impose a substantial burden on the 

religious exercise of a person residing in or confined to an 

institution . . . even if the burden results from a rule of general 

applicability, unless the government demonstrates that 

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imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; 

and

(2) is the least restrictive means of furthering that compelling 

governmental interest.

42 U.S.C. § 2000cc–1. RLUIPA effectively codified strict scrutiny as the 

rule of decision for religious free exercise cases brought by prisoners against 

institutions that receive federal funding.3

 See id.

Under RLUIPA, the plaintiff bears the burden of establishing that: (1) 

his religious belief is sincerely held;4 and (2) that government policy 

substantially burdens the exercise of that sincere belief. Holt, 574 U.S. at 

360–61.

If the plaintiff makes such a showing, the burden then shifts to the 

government to demonstrate that: (1) its policy is in furtherance of a 

compelling governmental interest; and (2) its policy is the least restrictive 

means of furthering that compelling governmental interest. Id. at 362.

_____________________

3 RLUIPA’s sister statute, the Religious Freedom Restoration Act, contains 

substantially similar language. See 42 U.S.C. § 2000bb et seq. RFRA was passed in 

response to the Supreme Court’s decision in Employment Division, Department of Human 

Resources of Oregon v. Smith, 494 U.S. 872 (1990). That case held that neutral laws of 

general applicability generally do not violate the First Amendment’s Free Exercise Clause. 

Holt, 574 U.S. at 356–57 (citing Smith, 494 U.S. at 878–82). In reaching that determination, 

the Court largely renounced traditional balancing under strict scrutiny. See, e.g., Wisconsin 

v. Yoder, 406 U.S. 205, 214, 219 (1972) (exemplifying strict-scrutiny-style balancing); 

Sherbert v. Verner, 374 U.S. 398, 403, 406 (1963) (same).

Congress relied on Section 5 of the Fourteenth Amendment to make RFRA 

applicable to the States. But in City of Boerne v. Flores, the Supreme Court held that RFRA 

exceeded Congress’s authority under that section. 521 U.S. 507, 532–36 (1997). In 

response to City of Boerne, Congress—this time invoking its Spending and Commerce 

Clause authority—enacted RLUIPA. See Holt, 574 U.S. at 357.

4 The government does not challenge the sincerity of Cole’s religious beliefs. 

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A

The district court did not decide whether Cole’s religious exercise is 

substantially burdened by TDCJ policy. Instead, it concluded that the policy 

is the least restrictive means of furthering a compelling governmental interest 

in controlling costs. That determination was erroneous. Indeed, at oral 

argument, counsel for Defendants disclaimed any reliance on the compelling 

interest and least restrictive means prongs of RLUIPA. Counsel further 

conceded that there was no evidence in the record to support a finding that 

TDCJ policy is the least restrictive means of furthering a compelling 

governmental interest in controlling costs. 

Bare assertions of increased costs do not automatically satisfy the 

requirement of a compelling governmental interest. In fact, as part of 

RLUIPA itself, Congress explicitly stated that “this chapter may require a 

government to incur expenses in its own operations to avoid imposing a 

substantial burden on religious exercise.” 42 U.S.C. § 2000cc–3(c)). If the 

relevant statute contemplates increased government expenditures, then it 

stands to reason that invocation of cost—absent evidence—is insufficient to

establish a compelling interest.

When analyzing whether the government has a compelling interest, 

“RLUIPA requires us to ‘scrutiniz[e] the asserted harm of granting specific 

exemptions to particular religious claimants’ and ‘to look to the marginal 

interest in enforcing’ the challenged government action in that particular 

context.” Holt, 574 U.S. at 363 (alteration in original) (quoting Burwell v. 

Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27 (2014)); see also Ali v. Stephens, 

822 F.3d 776, 792 (5th Cir. 2016) (“In determining whether a cost is 

compelling, a court may need to ‘put th[e] amount in perspective’ by 

measuring the projected expense against the resources devoted to that 

interest.” (alteration in original) (quoting Moussazadeh v. Texas Dep’t of 

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Crim. Just., 703 F.3d 781, 795 (5th Cir. 2012))). This is a necessarily 

comparative analysis. But with no evidence in the record of the cost of 

accommodating Cole’s religious requests, it is impossible to perform the 

required analysis.

The Seventh Circuit addressed a similar situation in a case where the 

plaintiff requested religiously required food for a single feast. Schlemm v. 

Wall, 784 F.3d 362 (7th Cir. 2015). It held that the government was not 

entitled to summary judgment. Id. at 365.

Wisconsin fears that every prisoner would demand a religious 

diet that requires daily, person-specific preparation so 

expensive that in the aggregate the costs of compliance would 

be crippling and the need to avoid them ‘compelling.’ But it 

has not tried to estimate what it would cost to honor 

Schlemm’s request; expense may be negligible . . . . [A]nd the 

costs of accommodating other inmates’ requests (should any 

be made) can be left to future litigation.

Id. at 365–66. The same is true for Cole.

Even if it could be said that TDCJ has a compelling interest in limiting 

expenses, TDCJ would need to demonstrate that its current meal-selection 

plan is the least restrictive means of furthering that interest. In other words, 

TDCJ would need to demonstrate that there is no cheaper method of 

accommodating Cole’s religious practices. “‘The least-restrictive-means 

standard is exceptionally demanding,’ and it requires the government to 

‘sho[w] that it lacks other means of achieving its desired goal without 

imposing a substantial burden on the exercise of religion by the objecting 

part[y].’” Holt, 574 U.S. at 364–65 (alterations in original) (quoting Hobby 

Lobby, 573 U.S. at 728).

Defendants provided no evidence to meet their burden at summary 

judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

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(en banc) (“If the moving party fails to meet this initial burden, the motion 

must be denied.”). Thus, we cannot say—based on the non-existent 

evidence provided—that TDCJ has used the least restrictive means of 

furthering a compelling governmental interest. 

At bottom, TDCJ’s “argument is but another formulation of the 

classic rejoinder of bureaucrats throughout history: If I make an exception for 

you, I’ll have to make one for everybody, so no exceptions.” Holt, 574 U.S. 

at 368 (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 

U.S. 418, 436 (2006)). Just as the Supreme Court did in Holt, we reject this 

argument. Id. RLUIPA and the summary judgment standard require more.

* * *

Because Defendants provided no evidence to meet their burden at 

summary judgment of demonstrating both a compelling governmental 

interest and that they used the least restrictive means of furthering that 

alleged interest, summary judgment should not have been granted. We 

VACATE and REMAND to the district court for further proceedings 

consistent with this opinion.

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