### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 2604
D AVID A. S CHLEMM , Plaintiff

- Appellant ,

v.
E DWARD F. W ALL , Secretary, Wisconsin Department of Co rrections, et al

. , Defendants

- Appellees

.

____________________ Appeal from the U nited States District Court for the Western District of Wisconsin

. No. 11

- cv

- 272

- wmc

— William M. Conley
, Chief Judge

.

____________________
S UBMITTED A PRIL 7, 2015

— D ECIDED A PRIL 21, 2015

____________________

Before E ASTERBROOK , W ILLIAMS , and H AMILTON , Circuit Judges

. E ASTERBROOK , Circuit Judge

. David Schlemm, a member of the Navajo Tribe, has been imprisoned in Wisconsin since 1999. In this suit under the Religious Land Use and Instit utionalized Persons Act (RLUIPA or the Act), 42 U.S.C. §§ 2000cc to 2000cc

– 5, Schlemm seeks an order requiring the prison system to accommodate some of his religious practi c-2 No. 14

- 2604

es. The district court dismissed some of his claims for failure to exhaust intra

- prison remedies , see 2014 U.S. Dist. L EXIS 78601 at *19

– 26 (W.D. Wis. June 10, 2014) , and we affirm that aspect of the decision without any need to add to the district judge’s analysis

. Schlemm’s arguments under the Constit ution’s First and Fifth Amendments (applied to the states by the Fourteenth) we bypass, b ecause the Act provides greater protection. But Schlemm has solid arguments on the two statutory claims on which he exhausted all administrative remedies.
Each autumn m embers o f the Navajo Tribe celebrate a Ghost Fe a st , part of a harvest celebration that h onors the dead through dancing, praying, and eating traditional foods. Wisconsin concedes that this celebration is religious in n ature, and the state does not contest Schlemm’s contention that he sincerely believes that the “traditional foods” should in clu de game meat ( ve nison)

. The prison system nonetheless has rejected Schlemm’s request for game meat or even ground beef to be included in Indian tacos (meat, shredded le ttuce, tomatoes, and onions in frybread shell s ). Defendants rejected Schlemm’s offer to secure a sealed platter of a cceptable game meat from an outside vendor. The prison has told Schlemm to use stew from the regular cafeteria line

— and this even though the prison system permits Jewish i nmates to have outside vendors furnish sealed S eder platters for Passover and permits participants in monthly sweat lodge ceremonies to import packets of appropriate foods

. Defendants maintain that serving venison would be too expensive, would exceed the capacity of institutional kitc hens (which unlike restaurants are not set up to serve ind ividually selected meals), and would violate a statewide ruleNo. 14

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limiting prison foods to those inspected and certified by the United States Department of Agriculture. The prison system offers Kosher and Halal foods but does not allow any inmate to pick a particular menu (with the apparent excepti on of the Seder platter s and sweat lodge packets). The Act provides:
No government shall impose a substantial burden on the rel igious exercise of a person residing in or confine d to an instit ution,

... even if the burden results from a rule of general applic ability, unless the government demonstrates that impositio n of the burden on that person

— (1) is in furtherance of a compel ling governmental interest; and (2) is the least restr ictive means of furthering that compelling governmental interest. 42 U.S.C. §2000cc

– 1(a). The district court granted summary judgment to the prison system, ruling that the absence of venison for the Ghost Feast does not impose a “substantial burden” on Sch lemm’s religious exercise. The court added that if this is wrong Schlemm still loses, because the state has a “compelling governmental interest” in holding down costs and using USDA

- inspected meats, and that requiring Schlemm to eat whate ver the kitchen is serving is the “least restrictive means” of furthering those interests. 2014 U.S. Dist. L EXIS 78601 at *30

– 36. Summary judgment requires the court to take all dispu ted material facts in the light most favorable t o the party o pposing the motion

. Schlemm te stified by deposition that game meat during the Ghost Feast is important to him as a religious matter; declarations from other practitioners of Navajo rites and traditions support that view. The district4 No. 14

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court thought this inadequate to establish that lack of ven ison imposes a substantial burden, as we defined that phrase in Eagle Cove Camp & Conference Center, Inc. v. Woodboro , 734 F.3d 673, 680 (7th Cir. 2013): to be substantial , a burden must be “one that necessarily bears direct, primary, and fund amenta l responsibility for rendering religious exercise ... e ffectively impracticable.” If that were the standard, then Schlemm would lose, for he still could dance and pray du ring the Ghost Feast. But two later decisions of the Supreme Cour t

— Holt v. Hobbs , 135 S. Ct. 853 (2015), and Burwell v. Hobby Lobby Stores, Inc ., 134 S. Ct. 2751 (2014)

— articulate a standard much easier to satisfy. Holt, a Muslim confined in a state prison , believes that he must wear a beard. Although he believes that his faith fo rbids any shaving or trimming of the beard, he acknow ledged the prison’s concern about hiding contraband in a long beard and proposed a compromise: a beard one

- half

inch long. The prison rejected even that accommodation , but the Supreme Court held that the Act entit les Holt to have a short beard. It concluded among other things that Holt “eas ily satisfied” (135 S. Ct. at 862) the “substantial burden” r equirement because shaving “seriously violates his religious beliefs” ( ibid ., quoting from Hobby Lobby ). The Court di d not ask whether a requirement to be clean

- shaven would make adherence to Islam “effectively impracticable”, the language of Eagle Cove

. As the Court noted in Holt , the Act covers “any exercise of religion, whether or not compelled by, or central to, a sy stem of religious belief.” 42 U.S.C. §2000cc

– 5(7)(A). Eagle Cove effectively limits the Act to those beliefs or pra ctices that are “central” to religious beliefs; it s approach did not survive Hobby Lobby and Holt

.No. 14

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The Supreme Court’s formulation leaves a l ot of unce rtainty. How is a court to tell whether a given restriction “s eriously” violates or contradicts religious beliefs? What, i ndeed, does “seriously” mean ?

— more than “modestly” and less than “overwhelmingly,” but there’s a lot of space in that range. Schlemm says that inability to eat game meat at the Ghost F east has a serious effect, and the record is not so lo psided as to permit that contention’s rejection on summary judgment. That Schlemm proposed a compromise (ground beef) does not scuttle his cla im, any more than Holt’s pr oposed compromise (a short beard) did. The parties have not joined is sue on how to distinguish “serious” from other effects . For now it is enough to say that the district court erred by rejecting Schlemm’s position on this paper record. Only two other court s of appeals have a ddressed the question whether denying access to “traditional foods” for a religious celebration imposes a substantial bu rden on religion. Both reached the same con clusion we do: the pri son system is not entitled to summary judgment

. Haight v. Thompson , 763 F.3d 554, 564

– 67 (6th Cir. 2014) ; A bdulhaseb v. Calbone , 600 F.3d 1301, 1319

– 20 (10th Cir. 2010)

. The district court’s fallback holding that the state has a “compelling” interest in the “least restrictive” way to resolve a request for Schlemm’s proposed accommodation is unte nable. Saving a few dollars is not a compelling interest, nor is a bureaucratic desire to follow the prison system’s rules. The Act requires prisons to change their rules to accommodate religious practices; rules ’ exist ence is not a compell ing obst acle to change. The prison system in Holt had a rule against beards, but the Court deemed it an inadequate answer to the inm ate’s request

.6 No. 14

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The prison system’s insis tence on USDA

- inspected meat hints at a potentially compelling justification: safe food. But for that justification to be “compelling” and the means “least restrictive ,” the prison system would have to prove that (a) all meats not inspected by the USDA are unsafe, and (b) no USDA

- inspected venison products are available. The Court stressed in Holt that the prison system has the burdens of production and persuasion on the compelling

- interest and least

- restrictive

- means defenses. The Act “requires the [pri son] not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest.” 135 S. Ct. at 864. Wisconsin has not offer ed any evidence to show that no USDA

- inspected game meats are available

— and the fact that venison is widely sold in supermarkets and served in restaurants shows that it can be safe for human consumption. It is difficult for us to believe that Wisconsin

wou ld be unable to find game meats that could be served without danger to the prisoners; certainly we cannot indulge such an assumption on an empty record. Wisconsin fears that every prisoner would demand a r eligious 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 “compe lling.” But it has not tried to estimate what it would cost to honor Schlemm’s request ; expense may be negligible if he finds a vendo r to provide a sealed platter of food acceptable for the Ghost Feast. The prison’s willingness to allow exte rnal platters for Passover and sweat lodges makes it hard to credit an argument that any culinary accommodation will bring the prison’s administrati on to its knees

. If the Church of the New Song makes a comeback (its sacraments wereNo. 14

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said to be chateaubriand and sherry), officials might have good reason to question the sincerity of these beliefs. See, e.g., Goff v. Graves , 362 F.3d 543 (8th Cir. 2004). But they do not question the sincerity of Schlemm’s. On this record the cost of accommodating Navajo inmates appears to be slight, and the costs of accommodating other inmates’ requests (should any be made) can be left to future litiga tion

. Schlemm exhaus ted his administrative remedies on a s econd request for accommodation. He wants to wear a multi

colored headband or bandana while praying or meditating in his cell and during group religious ceremonies such as the sweat lodge . The prison allows solid white and solid black religious headgear, but not any other color. The district judge assumed that the prison’s rules impose a substantial burden on Schlemm’s religious practices but concluded that the prison’s restrictions are the least restrictive means to achieve its compelling interest in preventing gang members from identifying themselves. 2014 U.S. Dist. L EXIS 78601 at *36

– 39. Before the Act’s adoption, we sustained a prison’s ban on colored headgear. Young v. Lane , 922 F.2d 370, 376 (7th Cir. 1991). The district judge thought that curtailing gang identification remains a compelling interest. Once again we conclude that Wisconsin is not entitled to summary judgment. It has asserted a need to suppress gang identifications but has not offered evidence t hat Schlemm’s proposed accommodation would undermine that interest. The prison system does not contend that any given gang’s members are unaware of which other prisoners belong to the same gang. The ban on colored headwear apparently is d esigned to reduce any gang’s adherents’ ability to advertise their status to non

- members. We say “reduce” rather than8 No. 14

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“eliminate,” because Wisconsin does not compel inmates to remove gang

- related tattoos and has only limited ability to police a ban on gang

- related speech an d h and signals. B ecause gang information may be widely available already, it is difficult to depict as “compelling” a desire to cut out one potential means of identification. More than that: Schlemm’s headband is not a plausible means of signaling gang mem bership, because he has o ffered to limit its use to his cell (where few other inmates will see it) or group religious ceremonies and to wear only colors not associated with any gang in the prison. He asserts, wit hout contradiction from defendants, that red is the only gang

signifying color at the prison where he is currently confined. He proposes to wear a headband with earth tones (such as blues and greens ) that no one would understand as gang

related. On this record, we must accept Schlemm’s submi ssions, which if true show that the prison does not have any interest, let alone a compelling one, in forbidding a hea dband that carries religious significance. The prison’s position is slightly better with respect to group ceremonies than with respect to in

- cell use, but as long as the headband is free of any gang significations it is hard to see a “compelling” need to prohibit its use. Wisconsin may be able to pro duce better evidence at a trial or undermine Schlemm’s evidentiary submissions. B ecause resolving his claims may require evidence that a pri soner will find it ha rd to obtain and present , the district court should seriously consider recruiting counsel to assist Schlemm. See Pruitt v. Mote , 503 F.3d 647 (7th Cir. 2007) (en banc) . And pending the final resol ution of this litigation, the court should issue a preliminary injunction entitlingNo. 14

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Schlemm to wear a headband in his cell and duri ng religious ceremonies (provided that the headband does not contain any red) , and have a supply of venison for the Ghost Fea st. The judgment is affirmed to the extent it rejects some claims as unexhausted and entitles two of the defendants to dismissal because they were not involved in the contested decisions. Otherwise the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.