___________

No. 94-3845

___________

Mark Juan Hamilton; *

*

Appellee, *

*

United States of America, *

*

Intervenor, *

*

v. *

*

Dora Schriro; Paul Delo; * Appeal from the United States

Jody Jackson; Bill Armontrout, * District Court for the Western

* District of Missouri.

Appellants, *

*

--------------------- *

*

Coalition for the Free Exercise *

of Religion; Koinonia House of *

Dupage County and Justice *

Fellowship, *

*

Amicus Curiae. *

___________

 Submitted: September 13, 1995

 Filed: January 12, 1996

___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

___________

BEAM, Circuit Judge.

Mark Juan Hamilton, an American Indian, initiated the present

action under the Civil Rights Act of 1871, 42 U.S.C. § 1983,

alleging that Missouri prison officials (prison officials) violated

his First Amendment right to free exercise of religion by requiring

him to cut his hair and by denying him access to a sweat lodge.

Applying the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §

2000bb, the district court enjoined prison officials from enforcing
 1

Hamilton was incarcerated at the Jefferson City prison when

he initiated this action. Hamilton was subsequently transferred to

Potosi, where he was incarcerated at the time of the hearing in

1994.

-2-

a hair length regulation and ordered them to provide a weekly sweat

lodge ceremony. Prison officials appeal. Because the prison

regulation and policy at issue do not violate Hamilton's right to

free exercise of religion as protected by the First Amendment and

RFRA, we reverse.

I. BACKGROUND

Hamilton is incarcerated at the maximum security Potosi

Correctional Center (Potosi).1 The facility provides crossdenominational religious facilities inside prison buildings.

American Indian inmates at Potosi are allowed to pray, to gather

together for regularly scheduled services, to meet with outside

spiritual leaders, and to obtain religious reading material from

the library. American Indians are also allowed to carry medicine

bags containing ceremonial items and have access to a ceremonial

pipe and kinnikinnik (a ceremonial "tobacco" consisting of willow,

sweet grass, sage and cedar). Potosi does not allow a sweat lodge,

sweat lodge ceremony, or fires on the premises. Potosi officials

enforce a Missouri Department of Corrections regulation that

prohibits hair length beyond the collar for male inmates. Hamilton

asserts that prison officials violated his First Amendment right to

free exercise of religion by denying him and other American Indian

prisoners access to a sweat lodge and by requiring their compliance

with the hair length regulation.

Hamilton brought the present action seeking injunctive relief,

damages and attorney fees. Hamilton's damage claims were dismissed

and are not before us on appeal. A hearing was held on March 29

and 30, 1994, on Hamilton's equitable demands.

 
-3-

A. Hair Length

Hamilton testified that American Indian males believe that

their hair is a gift from the Creator and is to be cut only when

someone close to them dies. Hamilton and other American Indian

inmates had long hair but were forced to cut it at the Potosi

prison. Hamilton testified that at one time his hair was four-feet

long.

Prison officials testified that long hair poses a threat to

prison safety and security. Stephen Long, the Assistant Director

of Adult Institutions for the Missouri Department of Corrections,

testified that inmates could conceal contraband, including

dangerous materials, in their long hair. Long stated that without

the hair length regulation, prison staff would be required to

perform more frequent searches of inmates, which could cause

conflicts between staff and inmates. Searching an inmate's long

hair would be difficult, especially if the inmate's long hair were

braided. Long also testified that the prison had tried to control

gangs by not allowing them to identify themselves through colors,

clothes, or hair carvings. He testified that exempting American

Indians from the hair length regulation could cause resentment by

the other inmates. He concluded that there was no alternative to

the hair length policy because only short hair can easily be

searched and remain free of contraband. Finally, Long noted that

long hair could also cause problems with inmate identification. 

B. Sweat Lodge

The sweat lodge ceremony primarily takes place inside a domeshaped structure constructed of bent willow poles and covered with

hides, blankets, or tarps. Rocks heated in a separate fire are

placed in the center of the lodge. During the ceremony, several

tools are used including an axe (to split the firewood), a shovel

(to transfer the hot rocks from the fire to the sweat lodge) and
-4-

deer antlers. Participants, who are nude, pour water on the hot

rocks to create steam, which causes them to sweat. Throughout the

ceremony, the lodge remains covered to retain the steam and to keep

out the light. The ceremony lasts between one and three hours.

When the lodge is not in use, the covers are removed but the willow

poles remain intact. 

Hamilton testified that the sweat lodge ceremony is

instrumental to the practice of his religion because it purifies

the participant. Purity, according to Hamilton, is a prerequisite

to participating in other religious ceremonies, such as offering

prayers and smoking the sacred pipe. Hamilton also testified that

participants in these ceremonies must be seated outdoors on the

ground. Hamilton stated that if he could not have access to a

sweat lodge ceremony, he would not and could not practice any

aspect of his religion. 

Hamilton introduced deposition testimony from prison

administrators in a few other states that their respective

facilities conduct sweat lodge ceremonies without any major

problems. These prison administrators conceded that they were

aware of some problems, including rumors of sexual impropriety

during the sweat lodge ceremony. No prisoner had filed a formal

complaint and the prison guards were unable to observe what

actually occurred inside the lodge.

The Potosi prison officials testified that the sweat lodge

requested by Hamilton raised concerns of prison safety and

security. Specifically, Long testified that the implements

requested by Hamilton to conduct the sweat lodge ceremony, such as

a shovel and an axe, could be used to assault other inmates and

prison guards. Long further testified that problems arise when

inmates in a maximum security prison, who are typically prone to

violence, congregate in groups. 
-5-

Alan Luebbers, the Associate Superintendent at Potosi,

testified that inmates who work with tools are supervised by prison

guards. The secluded nature of the sweat lodge would make such

supervision impossible, thus providing the inmates with an

opportunity to assault other inmates, make weapons, use drugs, dig

a tunnel, and engage in homosexual activity. Normally, a prison

guard is posted at religious functions to observe the inmates and

ensure their safety. 

Gary Tune, the Chaplain at the Potosi Correctional Center,

testified that if a sweat lodge were built it would be the only

facility devoted to a single religion. Assistant Director Long

also expressed concern over allowing Hamilton, an inmate, to decide

who may or may not use the sweat lodge. He concluded that

providing a sweat lodge may cause resentment among the inmates.

Jodie Jackson, the Chaplaincy Coordinator for the Missouri

Department of Corrections, testified that some American Indian

inmates at other Missouri state prisons practiced their religion

outdoors on the ground without the benefit of a sweat lodge. Those

prisoners offered prayers, observed special seasons, and smoked the

ceremonial pipe. Jackson testified that Hamilton had not requested

permission to practice his religion outdoors in a manner similar to

that at other institutions. Jackson stated, however, that the

Missouri Department of Corrections would consider such a request if

it were made. 

The district court found "that the regulations and policies at

issue in this lawsuit with regard to plaintiff's practice of his

. . . religion substantially [burden] plaintiff's exercise of his

religion." Hamilton v. Schriro, 863 F. Supp. 1019, 1024 (W.D. Mo.

1994). The district court held that "[a]lthough safety, security

and cost concerns may be shown to be compelling governmental

interests in the prison setting, defendants have not shown that the

regulations and practices used by the Missouri Department of
-6-

Corrections are the least restrictive means of furthering that

interest." Id. The district court enjoined enforcement of the

hair length regulation and ordered the prison officials to allow

Hamilton to practice his religion, including a weekly sweat lodge

ceremony. Id. at 1020. In a subsequent order, the district court

awarded attorney fees to Hamilton. The district court also stated

"that for 6 months after the sweat lodge becomes operational and

the ceremony is implemented, participation in the sweat lodge

ceremony shall be limited to those who are sincere adherents of the

Native American religion or to those who have been approved for

participation by majority vote of Native Americans who practice the

Native American religion and are scheduled to participate in the

ceremony." Hamilton v. Schriro, No. 91-4373, Amended Judgment

(W.D. Mo. Nov. 21, 1994). 

On appeal, the prison officials contend that: (1) Hamilton is

not sincere in his adherence to the American Indian religion; (2)

the prison regulations and policies do not substantially burden

Hamilton's free exercise of his religious beliefs; and (3) the

limitations imposed on hair length and sweat lodges are the least

restrictive means of furthering the compelling interest of

maintaining prison safety and security. The prison officials also

assert that under any circumstances, the condition imposed by the

district court on who may participate in the sweat lodge ceremony

is unprecedented and unreasonable. 

II. DISCUSSION

As with any section 1983 action, we must determine: (1)

whether the conduct complained of was committed by a person acting

under color of state law; and (2) whether this conduct deprived a

person of a right, privilege, or immunity secured by the

Constitution or laws of the United States. 42 U.S.C. § 1983;

Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994). Because the

prison officials were acting under color of state law, the first
 3

The First Amendment provides in pertinent part: "Congress

shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; . . . ." U.S. Const.

amend. I.

 4Some courts and commentators apparently interpret RFRA as

legislatively creating a compelling interest test that is to be

applied in all free exercise cases, thereby completely supplanting

prior constitutional standards. Even if Congress has the authority

to mandate such an approach, Hamilton's claim would fail under the

test set out in RFRA. See infra Part II.B.

 5Although the district court resolved the present case only

under RFRA, we think it is necessary to address the constitutional

claim because the district court suggested that it would have found

for Hamilton even under the constitutional analysis. Hamilton, 863

F. Supp. at 1022.

-7-

requirement of this two-part test is satisfied. Gunter, 32 F.3d at

1259.

Turning to the second requirement, Hamilton's section 1983

action was originally based on the claim that the prison officials

deprived him of his First Amendment right to the free exercise of

his religion.3 After this action was initiated, however, Congress

enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42

U.S.C. § 2000bb. RFRA applies retroactively. See Brown-El v.

Harris, 26 F.3d 68, 69 (8th Cir. 1994). Therefore, Hamilton's

section 1983 action now encompasses two separate theories: (1)

deprivation of his constitutionally protected First Amendment right

to the free exercise of his religion; and (2) deprivation of his

statutorily protected right, under RFRA, to the free exercise of

his religion. See generally Goodall v. Stafford County Sch. Bd.,

60 F.3d 168, 170 (4th Cir.), cert. denied, 64 U.S.L.W. 3333 (Jan.

8, 1996) (No. 95-666).4 We hold that Hamilton has failed to

establish a deprivation under either his constitutional or

statutory right to free exercise of religion.5 Because we hold

that Hamilton's section 1983 action fails under either
 6

See, e.g., United States v. Congress of Indus. Org., 335 U.S.

106, 125 (1948) (Frankfurter, J., concurring) ("`No questions can

be brought before a judicial tribunal of greater delicacy than

those which involve the constitutionality of a legislative

act. . . . [I]f the case may be determined on other points, a just

respect for the legislature requires, that the obligation of its

laws should not be unnecessarily and wantonly assailed.' Ex parte

Randolph, 20 Fed. Cas. No. 11,558 at 254, 2 Brock. 447, 478-79

(C.C.D. Va. 1833)."). Moreover, if RFRA were held to be

unconstitutional in the future, that determination would not affect

the validity of our holding in the present case.

-8-

constitutional or RFRA analysis, we need not and do not consider

the constitutionality of RFRA.6

A. Constitutional Analysis

Prison inmates "do not forfeit all constitutional protections

by reason of their conviction and confinement in prison." Bell v.

Wolfish, 441 U.S. 520, 545 (1979). Moreover, "federal courts must

take cognizance of the valid constitutional claims of prison

inmates," Turner v. Safley, 482 U.S. 78, 84 (1987), which include

actions based on free exercise rights protected by the First

Amendment. See Pell v. Procunier, 417 U.S. 817, 822 (1974).

However, "`[l]awful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal

system.'" Jones v. North Carolina Prisoners' Labor Union, Inc.,

433 U.S. 119, 125 (1977) (quoting Price v. Johnston, 334 U.S. 266,

285 (1948)). "The fact of confinement and the needs of the penal

institution impose limitations on constitutional rights, including

those derived from the First Amendment, which are implicit in

incarceration." Jones, 433 U.S. at 125. Furthermore, "`issues of

prison management are, both by reason of separation of powers and

highly practical considerations of judicial competence, peculiarly

ill-suited to judicial resolution, and . . . accordingly, courts

should be loath to substitute their judgment for that of prison
-9-

officials and administrators.'" Iron Eyes v. Henry, 907 F.2d 810,

812 (8th Cir. 1990) (quoting Pitts v. Thornburgh, 866 F.2d 1450,

1453 (D.C. Cir. 1989)). 

An inmate who challenges the constitutionality of a prison

regulation or policy that limits the practice of religion must

first establish that it infringes upon a sincerely held religious

belief. Hill v. Blackwell, 774 F.2d 338, 342-43, (8th Cir. 1985).

In the present case, we assume that Hamilton's religious beliefs

are sincerely held. See Iron Eyes, 907 F.2d at 813 (determining

the sincerity of a person's religious belief "is factual in nature

and thus is subject to the clearly erroneous standard of review").

A prisoner's free exercise claim is "judged under a

`reasonableness' test less restrictive than that ordinarily applied

to alleged infringements of fundamental constitutional rights."

O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); see also

Turner, 482 U.S. at 87-91. In Turner, the Supreme Court

articulated the applicable constitutional test in the context of

prison regulations: "when a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests." 482 U.S. at 89.

Prison security is one of these penological interests. O'Lone, 482

U.S. at 348. Several factors are to be considered when evaluating

the reasonableness of a prison regulation: (1) whether there is a

valid, rational connection between the regulation and the asserted

governmental interest; (2) whether alternative means for exercising

the right remain open to the prisoner; (3) the impact of the

regulation on prison staff, other inmates, and the allocation of

prison resources; and (4) the availability of ready alternatives to

the regulation. Turner, 482 U.S. at 89-91. 
-10-

1. Hair Length Regulation

We have previously applied the Turner factors to an American

Indian prisoner's claim that hair length regulations violated his

constitutionally guaranteed right to free exercise of religion and

concluded that such a regulation passes constitutional muster.

Iron Eyes, 907 F.2d at 813-16. Our prior decisions make it

abundantly clear that Hamilton's constitutional challenge to the

prison hair length regulation must fail. Id.; see also Sours v.

Long, 978 F.2d 1086 (8th Cir. 1992) (per curiam); Kemp v. Moore,

946 F.2d 588 (8th Cir. 1991) (per curiam), cert. denied, 504 U.S.

917 (1992). Therefore, we conclude that under the Turner criteria,

Hamilton's free exercise right is outweighed by the validity of the

regulation. See Iron Eyes, 907 F.2d at 816.

2. Sweat Lodge

As with prison hair length regulations, we have previously

resolved the issue of whether a prison official's denial of access

to a sweat lodge violates an American Indian inmate's free exercise

right under the First Amendment. Kemp, 946 F.2d 588 (affirming the

district court's decision denying a prisoner's request for an order

to require the construction of a sweat lodge). In a recent case,

however, we acknowledged that such a determination "depends upon

whether the restriction imposed by prison authorities bears a

rational relationship to the furtherance of a legitimate

penological interest." Thomas v. Gunter, 32 F.3d 1258, 1260 (8th

Cir. 1994) (concluding that the district court improperly granted

summary judgment for prison authorities because their justification

for denying the inmate sweat lodge access was based on "securityrelated limitations," which did not provide a sufficiently specific

basis to determine if some rational relationship existed between

the denial of access and security). Applying the Turner factors to

the present case, we conclude that the prison officials' denial of
-11-

Hamilton's access to a sweat lodge was rationally related to the

legitimate penological interests of safety and security at Potosi.

First, prohibiting Hamilton and other inmates from meeting in

a completely enclosed area is rationally connected to preventing

the type of harm prison officials fear would occur in the sweat

lodge. Second, alternative means remain open to Hamilton for

exercising his religion, including carrying a medicine bag

containing ceremonial items, having access to a ceremonial pipe and

kinnikinnik, and praying with other American Indian inmates.

Third, accommodating Hamilton's request for a sweat lodge would

have an adverse impact on prison staff, other inmates, and prison

resources due to the risk of assaulting participants in the

ceremony, as well as possible resentment resulting from the

erection of an exclusive religious facility. Finally, Hamilton has

failed to "point to an alternative that fully accommodates the

prisoner's rights at de minimis cost to valid penological

interests." Turner, 482 U.S. at 91.

Therefore, we hold that the constitutional claim underlying

Hamilton's section 1983 action fails. Our prior decisions make it

clear that enforcing prison hair length regulations, such as the

one at issue in the present case, and prohibiting sweat lodge

ceremonies do not violate an inmate's constitutional right to free

exercise of religion. Additionally, the applicable constitutional

analysis articulated by the Supreme Court in Turner supports our

conclusion that the prison officials' failure to provide Hamilton

with a sweat lodge does not violate his right to free exercise of

religion. 
 7

The statute provides in relevant part: 

 (a) In general

Government shall not substantially burden a person's

exercise of religion even if the burden results from a

rule of general applicability, except as provided in

subsection (b) of this section.

(b) Exception

Government may substantially burden a person's

exercise of religion only if it demonstrates that

application of the burden to the 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. 2000bb-1(a),(b).

 8Congress enacted RFRA in response the Supreme Court's holding

in Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 886 n.3 (1990), that "generally applicable, religionneutral laws that have the effect of burdening a particular

religious practice need not be justified by a compelling

governmental interest." 42 U.S.C. § 2000bb(a)(4) (finding that in

Smith, "the Supreme Court virtually eliminated the requirement that

the government justify burdens on religious exercise imposed by

laws neutral toward religion").

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B. RFRA Analysis

In 1993, Congress enacted RFRA, which statutorily created a

compelling interest-least restrictive means test7 to be applied to

all cases where free exercise of religion is substantially

burdened. 42 U.S.C. § 2000bb(b)(1). The stated purpose of

enacting RFRA was "to restore the compelling interest test as set

forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.

Yoder, 406 U.S. 205 (1972) and to guarantee its application in all

cases where free exercise of religion is substantially burdened."

42 U.S.C. § 2000bb(b)(1).8 In addition, Congress intended "to
-13-

restore traditional protection afforded to prisoners' claims prior

to O'Lone." S. Rep. No. 111, 103d Cong., 1st Sess. (1993),

reprinted in 1993 U.S.C.C.A.N. 1892, 1899 (Senate Report). See

also 139 Cong. Rec. S14468 (daily ed. Oct. 27, 1993) (recording the

Senate vote rejecting a proposed amendment that would have excluded

prisoners' free exercise claims from the compelling interest

standard in RFRA). Congress intended for RFRA "to provide a claim

or defense to persons whose religious exercise is substantially

burdened by government." 42 U.S.C. § 2000bb(b)(2). 

For purposes of our analysis, we assume that the regulations

and policies at issue in the present case substantially burden

Hamilton's exercise of his religion. Hamilton, 863 F. Supp. at

1024. The district court acknowledged that "safety, security and

cost concerns may be shown to be compelling governmental interests

in the prison setting." Id. See also Pell, 417 U.S. at 823.

Under RFRA, the prison officials bear the burden of demonstrating

that the regulation is the least restrictive means of achieving a

compelling interest. 42 U.S.C. § 2000bb-1(b). Therefore, the

primary question before us is whether the district court erred in

holding that the prison policies and regulations at issue were not

the least restrictive means of achieving the compelling interest of

prison safety and security. 

The district court's conclusion that the prison officials

failed to satisfy the statutorily imposed test under RFRA is a

question of law which is subject to de novo review. While the

district court's findings of fact are subject to a clearly

erroneous standard of review, the ultimate conclusion as to whether

the regulation deprives Hamilton of his free exercise right is a

question of law subject to de novo review. See Hill, 774 F.2d at

343. We find that applying the least restrictive means prong of

RFRA also raises an issue of statutory construction, which is

subject to de novo review. See generally Department of Social

Serv. v. Bowen, 804 F.2d 1035, 1037 (8th Cir. 1986).
-14-

Pre-O'Lone case law and RFRA's legislative history indicate

that the applicable test must be construed in the prison setting,

giving due deference to the expert judgment of prison

administrators. See generally Abbott Cooper, Comment, Dam the RFRA

at the Prison Gate: The Religious Freedom Restoration Act's Impact

on Correctional Litigation, 56 Mont. L. Rev. 325 (1995). The

legislative history of RFRA also shows that while Congress intended

for the same compelling interest test in the statute to apply to

prisoners as well as non-prisoners, the outcome of the analysis

would depend upon the context. It was noted in the Senate Report

that: 

The Religious Freedom Restoration Act would establish one

standard for testing claims of Government infringement on

religious practices. This single test, however, should

be interpreted with regard to the relevant circumstances

in each case. 

Senate Report at 9, 1993 U.S.C.C.A.N. at 1898. Thus, while

Congress intended to revoke O'Lone, it did not intend to impose a

more rigorous standard than the one that was applied prior to

O'Lone. Id. Therefore, pre-O'Lone case law provides useful

guidance on how to interpret the test in RFRA and how to resolve

the present case.

The Supreme Court has long recognized the need to defer to the

judgment of prison administrators when evaluating the validity of

a prison regulation that impinges an inmate's First Amendment

rights. See, e.g., Procunier v. Martinez, 416 U.S. 396, 404-05

(1974). In Martinez, the Court held, among other things, that a

prison mail censorship regulation was invalid. Id. at 415-16.

Nevertheless, the Supreme Court noted: "[C]ourts are ill equipped

to deal with the increasingly urgent problems of prison

administration and reform. . . . Moreover, where state penal

institutions are involved, federal courts have a further reason for

deference to the appropriate prison authorities." Id. at 405. In
 9

Another circuit was also "persuaded . . . by the reasoning of

Wolfish, Pell, and Martinez that [the pre-O'Lone test required]

prisoner free exercise claims [to] be judged in accordance with a

standard different from that applied outside the prison." Madyun

v. Franzen, 704 F.2d 954, 959 (7th Cir.), cert. denied, 464 U.S.

996 (1983).

-15-

Jones, 433 U.S. at 125, the Court upheld prison regulations that

prohibited meetings of prisoners' labor unions, solicitations to

join the union, and bulk mailings concerning the union from outside

sources against a First Amendment challenge, noting that the lower

court "got off on the wrong foot . . . by not giving appropriate

deference to the decisions of prison administrators and appropriate

recognition to the peculiar and restrictive circumstances of penal

confinement." In Pell, the Court rejected the inmates' First

Amendment challenge to the ban on media interviews, noting that

judgments regarding prison security "are peculiarly within the

province and professional expertise of corrections officials, and,

in the absence of substantial evidence in the record to indicate

that the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert

judgment in such matters." 417 U.S. at 827 (emphasis added); see

also Bell v. Wolfish, 441 U.S. 520 (1979). Therefore, even prior

to the reasonableness test expressly set out in O'Lone, the Supreme

Court afforded deference to the judgment of prison administrators

when evaluating the validity of a prison regulation. See

Thornburgh v. Abbott, 490 U.S. 401, 411 (1989) (in adopting the

reasonableness test set out in Turner and overruling Martinez, the

Court stated: "We do not believe that Martinez should, or need, be

read as subjecting the decisions of prison officials to a strict

`least restrictive means' test."); Turner, 482 U.S. at 87.9 

We have applied the pre-O'Lone Supreme Court test in the

context of a prisoner's First Amendment right to the free exercise

of religion. See Hill, 774 F.2d at 340-43; Rogers v. Scurr, 676

F.2d 1211, 1215 (8th Cir. 1982) ("[W]hen the maintenance of
 10Although there were several versions of the applicable test

prior to O'Lone, see generally Mary A. Schnabel, Comment, The

Religious Freedom Restoration Act: A Prison's Dilemma, 29

Willamette L. Rev. 323 (1993), we look to Supreme Court precedent,

RFRA's legislative history, and our own case law for guidance. 

-16-

institutional security is at issue, prison officials ordinarily

must have wide latitude within which to make appropriate

limitations."). Thus, prior to O'Lone, we applied a test that

required balancing the need for a particular regulation and the

invasion of religious freedom that the restriction caused. Hill,

774 F.2d at 342 (citing Pell, 417 U.S. at 822-23); see also Murphy

v. Missouri Dep't of Corrections, 814 F.2d 1252, 1256 (8th Cir.

1987). The Senate Report shows that RFRA was intended to restore

this balancing test:

Prior to O'Lone, courts used a balancing test in cases

where an inmate's free exercise rights were burdened by

an institutional regulation; only regulations based upon

penological concerns of the "highest order" could

outweigh an inmate's claims. 

Senate Report at 9-10, 1993 U.S.C.C.A.N. at 1899.10 Prison safety

and security are penological concerns of the highest order.

This balancing test mandates that limitations on free exercise

rights "be no greater than necessary to protect the governmental

interest involved[.]" Scurr, 676 F.2d at 1215 (citing Procunier v.

Martinez, 416 U.S. 396, 413 (1974)). In the prison context,

however, prison officials ordinarily must have wide latitude within

which to make appropriate limitations to maintain institutional

security. Id. This is because "central to all other corrections

goals is the institutional consideration of internal security

within the corrections facilities themselves." Pell, 417 U.S. at

823. 
-17-

We find the "no greater than necessary" requirement to be

functionally synonymous with the "least restrictive means" prong of

the RFRA test when applied in the prison context. Because we are

faced with a prison case where the maintenance of institutional

security is at issue, we must give the prison officials wide

latitude within which to make appropriate limitations. 

Our interpretation and application of the least restrictive

means prong of the RFRA test is consistent with the statute's

legislative history. Significantly, the legislative history of

RFRA recognizes the necessity for courts to continue deferring to

the judgment of prison officials. 

The committee [on the Judiciary] does not intend the act

[RFRA] to impose a standard that would exacerbate the

difficult and complex challenges of operating the

Nation's prisons and jails in a safe and secure manner.

Accordingly, the committee expects that the courts will

continue the tradition of giving 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.

Senate Report at 10, 1993 U.S.C.C.A.N. at 1899-1900 (footnote

omitted). In fact, the Senate rejected a proposed amendment that

would have excluded prisoners from the scope of RFRA, finding that

such an express exclusion was not necessary because courts had been

extremely deferential to prison authorities. See 139 Cong. Rec.

S14467 (daily ed. Oct. 27, 1993). Senator Danforth concluded that

"RFRA mandates a uniform test, not a uniform result." Id.

Therefore, both pre-O'Lone Supreme Court case law and the

relevant legislative history indicate that a court applying RFRA

must give due deference to the expertise of prison officials in

establishing regulations to maintain prison safety and security,
 11Of course, this is not to say that a reviewing court must

accept the justification articulated by prison authorities in all

cases. In order to satisfy their burden under RFRA, prison

authorities must do more than offer conclusory statements and post

hoc rationalizations for their conduct. Senate Report at 10, 1993

U.S.C.C.A.N. at 1900.

 12Hamilton argues that our prior decision in Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975) is dispositive of the hair length

regulation. Hamilton's reliance on Teterud is misplaced. In

Teterud, we noted that "the only reason advanced in support of the

regulation was the Warden's opinion, unsupported by empirical

proof, that the hair net and reidentification requirements

necessitated by allowing long hair would create a `hassle' between

correction officers and inmates." Id. at 361; see also Hill, 774

F.2d at 341-42 (distinguishing Teterud on the basis that "the

-18-

even when the court applies a "heightened" standard of review.11

We hold that the prison officials in the present case demonstrated

that the prison regulation and policy at issue are the least

restrictive means of maintaining the prison's compelling interest

in institutional safety and security.

1. Hair Length Regulation

As earlier noted, prison officials testified that prison

security requires them to prevent inmates from concealing

contraband in their long hair and identifying with a particular

gang. The prison officials also testified that preventing male

inmates from growing their hair longer than collar length is the

least restrictive way to achieve that goal because no viable

alternatives exist.

Our prior case law supports the conclusion that the prison

officials may enforce a hair length regulation such as the one at

issue in the present case. Cf. Iron Eyes, 907 F.2d at 815-16

(applying the reasonableness test set out in O'Lone to a prison

hair length regulation we concluded that "[a]ny other solution

would come at more than a de minimis cost to valid penological

interests").12 In an analogous situation, we held, under the pre-
[W]arden's justification for the regulation was not founded on a

legitimate concern for prison security, and there was no need to

decide whether the prison officials had exaggerated their response

to a legitimate security consideration"). In the present case, the

hair length regulation was founded on the legitimate concern that

prison safety would be compromised by inmates concealing contraband

in their long hair or identifying with a particular gang.

 13Although no other circuit has yet decided whether RFRA

precludes prison hair length regulations, several district courts

have upheld such regulations against RFRA challenges. Phipps v.

Parker, 879 F. Supp. 734, 736 (W.D. Ky. 1995) (holding that

"cutting inmates' hair short appears to be the only plausible way

to meet these safety concerns, and thus satisfies the requirement

that the least restrictive means available be used to achieve the

compelling interests"); Diaz v. Collins, 872 F. Supp. 353, 359

(E.D. Tex. 1994) ("The potential of hiding contraband in long hair

cannot be vitiated except through a regulation that hair be kept

short."). In Phipps, the district court recognized that "[w]hile

other methods might be used, such as constantly searching inmates

for contraband, such means would be impractical and just as likely

to burden constitutional interests." 879 F. Supp. at 736. These

cases support our conclusion that the district court in the present

case failed to give due deference to the expert judgment of prison

officials who testified that no viable alternative existed to the

-19-

O'Lone standard, that prison officials could prohibit Muslim

inmates from wearing religious caps and robes outside prayer

meetings because such attire made it too easy to conceal

contraband. Scurr, 676 F.2d at 1215. We stated that the prison

authorities' explanation was "eminently reasonable, particularly in

view of the fact that operating personnel is limited." Id.

It is more than merely "eminently reasonable" for a maximum

security prison to prohibit inmates from having long hair in which

they could conceal contraband and weapons. It is compelling.

Further, it is important for prison administrators to prevent

inmates from identifying with particular gangs through their hair

style. The safety and security concerns expressed by prison

officials were based on their collective experience of

administering correctional facilities. These are valid and weighty

concerns. Moreover, there is no viable less restrictive means of

addressing these concerns.13 Therefore, we conclude that the
hair length regulation. 

 14To date, no circuit has decided whether RFRA protects an

American Indian's free exercise right to the extent that a prison

must provide a sweat lodge. In Werner v. McCotter, 49 F.3d 1476,

1480 (10th Cir. 1995), cert. denied, 115 S. Ct. 2625 (1995), the

court acknowledged that an American Indian prisoner had made out a

prima facie case under RFRA, but remanded the case to the district

court because the record was almost devoid of the facts necessary

to allow the court to balance the governmental interest at stake

against the restrictions placed on the inmate. 

-20-

district court erred in its interpretation and application of the

least restrictive means prong of the compelling interest test in

RFRA. The district court failed to give due deference to the

prison officials' testimony that long hair presented a risk to

prison safety and security and that no viable less restrictive

means of achieving that goal existed.

2. Sweat Lodge

The prison officials asserted that to maintain prison security

they must prevent inmates from assaulting each other, escaping,

using drugs, and engaging in homosexual conduct. The prison

officials testified that a traditional American Indian sweat lodge

would provide inmates with an opportunity to engage in these

activities without being seen by prison guards. Moreover, the

prison officials testified that providing specific inmates with

their own exclusive religious facility would appear to other

inmates as an act of favoritism and would lead to resentment.

According to prison officials, prohibition of the sweat lodge

ceremony is the least restrictive means of ensuring prison safety

and security because Hamilton has refused to consider any type of

modified ceremony where participants would be allowed to pray

outside on the ground without the opaque covering.14

 
 15"As used in [RFRA] . . . the term `demonstrates' means meets

the burdens of going forward with the evidence and of

persuasion[.]" 42 U.S.C. § 2000bb-2(3).

-21-

Although RFRA places the burden of production and persuasion

on the prison officials,15 once the government provides this

evidence, the prisoner must demonstrate what, if any, less

restrictive means remain unexplored. It would be a herculean

burden to require prison administrators to refute every conceivable

option in order to satisfy the least restrictive means prong of

RFRA. Moreover, such an onerous requirement would be

irreconcilable with the well-established principle, recognized by

the Supreme Court and RFRA's legislative history, that prison

administrators must be accorded due deference in creating

regulations and policies directed at the maintenance of prison

safety and security. See O'Lone, 482 U.S. at 350.

Prison officials testified that they would consider a proposal

to allow American Indian inmates to meet outdoors on the ground to

pray and conduct the pipe ceremony. According to prison officials,

American Indian inmates at other Missouri prisons are allowed to

participate in various ceremonies outdoors on the ground without a

sweat lodge. This type of modified ceremony would eliminate a

primary concern of prison officials, namely the inability of prison

guards to observe the inmates in the lodge. Hamilton testified,

however, that he would not and could not practice his religion in

any capacity if he were not allowed to participate in a sweat lodge

ceremony.

This case presents the unusual situation where the government

has satisfied the least restrictive means prong by demonstrating

that other less restrictive alternatives are not acceptable to the

plaintiff. See Cheema v. Thompson, 67 F.3d 883, 894 (9th Cir.

1995) (Wiggins, J., dissenting) (noting that the case presented a

unique question of least restrictive means analysis because the
-22-

plaintiffs have taken an all-or-nothing position). Hamilton's own

all-or-nothing position supports the prison officials' contention

that an outright prohibition against a sweat lodge ceremony is the

least restrictive means of achieving the compelling interests of

prison safety and security in this case.

Hamilton testified that the sweat lodge ceremony could

probably be conducted without the axe. Hamilton also "invited"

prison guards to participate in the sweat lodge ceremony with the

prisoners. Neither of Hamilton's suggestions, however, adequately

addresses the prison officials' concerns. First, the axe is only

one of several potentially dangerous instruments used in the sweat

lodge ceremony. Thus, conducting the sweat lodge ceremony without

the axe would not obviate the risk that the other instruments

(e.g., deer antlers) would be used as a weapon. Second, the

physical characteristics of the sweat lodge (i.e., low doorway and

no light) would create a serious risk to prison guards searching

the lodge during a ceremony. Thus, the prison officials' concern

that the participants could engage in prohibited conduct while

inside the opaque lodge are not alleviated.

There may very well be less restrictive means of achieving

prison safety and security than completely prohibiting sweat lodge

ceremonies. Justice Blackmun recognized the dilemma implicit in a

least restrictive means analysis: "A judge would be unimaginative

indeed if he could not come up with something a little less

`drastic' or a little less `restrictive' in almost any situation,

and thereby enable himself to vote to strike legislation down."

Illinois State Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 188-89 (1979) (Blackmun, J., concurring). Hamilton has

failed to enlighten us as to any viable less restrictive means that

may remain available to the prison officials short of prohibiting
 16A remand to the district court is not necessary in this case

because the record contains sufficient factual support for our

conclusion that the prison officials have satisfied their burden

under RFRA. We recognize that additional evidence was placed in

the record as part of Hamilton's post-judgment motion to preserve

the status quo. However, we rely only on the evidence that was

before the district court to reach our conclusion.

The district court relied on the deposition testimony of

prison administrators from a few other states that they were

conducting sweat lodge ceremonies without the problems envisioned

by the Missouri prison officials. See Hamilton, 863 F. Supp. at

1023. This deposition testimony, however, also revealed that the

prison administrators were aware of various problems with the sweat

lodges, including allegations of sexual improprieties occurring in

the lodges. Prison administrators stated that no formal charges

had been filed due to the reluctance of prisoners to testify and

the fact that no prison guard could observe the participants while

they were in the lodge.

The district court acknowledged that "Missouri corrections

personnel relied on their experience in corrections work and on a

belief that such practices would interfere with the safety and

security of the institution." Id. Although prison policies from

other jurisdictions provide some evidence as to the feasibility of

implementing a less restrictive means of achieving prison safety

and security, it does not outweigh the deference owed to the expert

judgment of prison officials who are infinitely more familiar with

their own institutions than outside observers.

-23-

the sweat lodge ceremony entirely. Accordingly, we hold that the

prison officials have satisfied their burden under RFRA.16

III. CONCLUSION

In sum, we hold that the district court failed to give due

deference to prison officials who testified as to the necessity of

the prison hair length regulation and prohibition against a sweat

lodge to maintain prison safety and security. Because the least

restrictive means prong of the compelling interest test in RFRA

requires no more than the pre-O'Lone cases required, the prison

officials' justifications for the hair length regulation and

prohibition of a sweat lodge ceremony were sufficient. On these

facts we conclude that the prison regulations at issue do not
-24-

violate Hamilton's right to the free exercise of religion as

protected by the Constitution and RFRA. Our decision does not,

however, foreclose the possibility of a successful sweat lodge

claim under different circumstances. Furthermore, we encourage

prisons to accommodate the religious needs of inmates, including

American Indian inmates, by providing facilities beyond the bare

minimum. Accordingly, the district court's decision and award of

attorney fees is reversed. All pending motions before this court

are overruled.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent from Part II(B)(1) of the majority

opinion insofar as it holds that Tetrud v. Burns, 522 F.2d 357 (8th

Cir. 1975) (Tetrud), is not dispositive of the hair length

regulation issue under the compelling interest test. See slip op.

at 18 n.12. Accordingly, if I were of the opinion that the

Religious Freedom Restoration Act (RFRA) is constitutional, then I

would affirm the district court's holding that the hair length

regulation violates federal law. However, for the reasons

discussed below, I believe that RFRA is unconstitutional.

Therefore, I would vacate the judgment of the district court and

remand the case for further proceedings.

I.

Hamilton is an inmate at the Potosi Correctional Center

(Potosi), a maximum security facility of the Missouri Department of

Corrections. He filed this civil rights lawsuit after

unsuccessfully pursuing prison grievance procedures. He claims

that prison officials (hereinafter defendants) violated his First

Amendment right to freely exercise his Native American religion.

Hamilton, whose mother was of Choctaw descent, primarily contended

that a prison grooming regulation prevented him from growing long
-25-

hair and that defendants denied his request to build a sweat lodge

in which to conduct religious ceremonies.

At the two-day evidentiary hearing held before the magistrate

judge in March 1994, Hamilton submitted the deposition testimony of

a number of prison officials from states other than Missouri.

These officials testified as to their experience with sweat lodges

and hair length regulation at their respective facilities. An

assistant superintendent from a facility in Springfield, South

Dakota, testified that they have had a sweat lodge since 1985 and

that there have been no security problems or claims of sexual

misconduct. Prison officials from Wisconsin and Iowa gave similar

testimony as to their facilities' experience with sweat lodges.

With regard to hair length, prison officials from Iowa and South

Dakota testified that their states' penitentiaries have abandoned

hair length regulation. Hamilton also submitted the deposition

testimony of Chief Mato Wanagi Baldwin of the Menicongulakota

Tribe. Chief Baldwin testified about the religious significance of

the sweat lodge ceremony and the growing of long hair. His

testimony corroborated Hamilton's claim that a sweat lodge ceremony

must be outside on the ground and that Native Americans

traditionally wear their hair long and braided.

Following the evidentiary hearing, the magistrate judge issued

a written report and recommendation. Hamilton v. Schriro, No. 91-

373-CV-C-5 (W.D. Mo. Apr. 13, 1994) (Report and Recommendation).

In his evaluation of Hamilton's claims, the magistrate judge

expressly relied on RFRA, 42 U.S.C. § 2000bb-bb4, which had become

effective in November 1993, a few months before the hearing on

Hamilton's equitable claims. The magistrate judge specifically

found that Hamilton's religious beliefs were sincerely held and

that the sweat lodge ceremony was an "essential component" of his

Native American religion. Report and Recommendation at 4. The

magistrate judge found defendants' denial of Hamilton's requests

unreasonable because they did not
-26-

(1) make any inquiry of problems encountered by personnel

at institutions which allow the practice of Native

American religions; (2) contact any Native American

religious leader to determine the feasibility of

[Hamilton's] requests, or to determine whether other

acceptable alternatives existed; or (3) do a cost

analysis or make inquiry regarding the availability of

funds or the amount of funds that would be required.

Id. at 5. In essence, the magistrate judge concluded that

defendants "made absolutely no effort to determine whether the

religious practices could be accommodated while still taking care

of safety and security concerns." Id. The magistrate judge also

found that the concerns about the smuggling of contraband and

inmate identification with regard to hair length were overstated.

Id. at 6. Accordingly, the magistrate judge recommended that

defendants be enjoined from enforcing hair length regulations

against Hamilton and that "accommodations be made in accordance

with the Religious Freedom Restoration Act to allow [Hamilton] to

practice his Native American religion, including the right to have

a weekly sweat lodge ceremony." Id. at 7.

The district court adopted the recommendation but modified it

to require the parties to seek a compromise on the precise way to

effectuate the remedy with regard to the sweat lodge ceremonies.

Hamilton v. Schriro, 863 F. Supp. 1019 (W.D. Mo. 1994) (publishing

the full text of the magistrate judge's report and recommendation).

However, the parties were unable to resolve all of the issues. The

parties could not agree on the location of the sweat lodge, and

defendants wanted the sweat lodge to be available to all inmates,

in accordance with their policy toward other religious services.

The case was thus referred back to the magistrate judge who

recommended a possible location for the sweat lodge and also

recommended that 

for six (6) months after the sweat lodge becomes

operational and the ceremony is implemented,

participation in the sweat lodge ceremony be limited to
-27-

those who are sincere adherents of the Native American

religion or to those who have been approved for

participation by majority vote of Native Americans who

practice the Native American religion and are scheduled

to participate in the ceremony.

 

Slip op. at 2 (Sept. 8, 1994) (Report and Recommendation II). The

district court adopted the recommendation on eligibility for

participation in the sweat lodge ceremony verbatim and the other

recommendations with only minor modifications. Id. (Oct. 21,

1994).

II.

Our court first heard oral argument in this case in May 1995.

At that time, defendants did not challenge the constitutionality of

RFRA. However, because of some concern over the district court's

treatment of the issue, we asked the parties to submit supplemental

briefs. Defendants, in their supplemental brief, have argued that

RFRA is unconstitutional. Shortly after the oral argument, the

United States (the government) moved to intervene as plaintiffintervenor and also requested supplemental oral argument. We

granted the government's motion to intervene and heard supplemental

argument from the parties in September 1995.

A.

As a threshold matter, I discuss my reasons for reaching the

constitutionality of RFRA. Although neither party initially raised

the constitutional issue on appeal, defendants did raise the issue

before the magistrate judge. In the report and recommendation

concluding that Hamilton was entitled to injunctive relief, the

magistrate judge discussed the constitutionality of RFRA as

follows:

The court is cognizant of defendants' suggestion . . .

that the constitutionality of RFRA has not yet been
-28-

determined. Section 5 of the fourteenth amendment

encompasses the liberties guaranteed by the first

amendment. [citation omitted] It follows, therefore,

that Congress may enact laws enforcing the provisions of

the first amendment. In the absence of compelling

arguments or case law indicating otherwise, this court

will not further address this issue.

Report and Recommendation at 7. The district court's order

adopting the Report and Recommendation did not address the

constitutional question. Although brief, the magistrate judge's

treatment of the issue clearly reaches the conclusion that § 5 of

the Fourteenth Amendment provides Congress with a constitutional

basis for the enactment of RFRA. 

Although it appears the issue of RFRA's constitutionality

received limited consideration in the district court, we have

previously held that "[i]t is not unfair to a trial court for an

appellate court to decide a question that the trial court actually

reached in its opinion, notwithstanding the fact that it was not

argued by the parties." Struempler v. Bowen, 822 F.2d 40, 42 (8th

Cir. 1987). Moreover, even where the district court has not

considered an issue, "[t]he matter of what questions may be taken

up and resolved for the first time on appeal is one left primarily

to the discretion of the courts of appeals, to be exercised on the

facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121

(1976). In the present case, the factual record has been fully

developed, and the magistrate judge, although admittedly in

passing, expressly upheld the constitutionality of RFRA. Under

these circumstances, I would not refrain from consideration of the

constitutional issue.

B.

Long-standing principles teach us to be reluctant to consider

the constitutionality of a federal statute. See Zobrest v.

Catalina School Dist., 113 S. Ct. 2462, 2465-66 (1993). It is
 1

While I am inclined to believe that the denial of Hamilton's

request for a sweat lodge ceremony would also justify an

examination of the constitutionality of RFRA, I will, for purposes

of analysis, focus on the injunction prohibiting enforcement of the

hair length restriction because RFRA's effect on this claim is more

easily discernible.

-29-

well-settled that an act of Congress is to be presumed

constitutional and that doubts about the construction of a federal

statute are to be resolved, if fairly possible, in favor of its

constitutionality. Id. With these principles of statutory

construction in mind, I note that the district court concluded that

Hamilton was entitled to equitable relief because defendants failed

to satisfy their burden of demonstrating that their infringement

upon Hamilton's religious liberty was accomplished through the

least restrictive means. Clearly, RFRA's enactment was pivotal to

the district court's decision to enjoin enforcement of the hair

length regulation. In fact, prior to the enactment of RFRA, our

circuit had specifically held that a similar Missouri prison hair

length restriction was valid as reasonably related to legitimate

penological interests. Iron Eyes v. Henry, 907 F.2d 810, 813 (8th

Cir. 1990) (Iron Eyes), citing O'Lone v. Estate of Shabazz, 482

U.S. 342, 350 (1987) (O'Lone), and Turner v. Safly, 482 U.S. 78,

89-91 (1987) (Turner). Thus, the magistrate judge's conclusion

that RFRA effected a dramatic change in the legal landscape of

Supreme Court and Eighth Circuit precedent was sine qua non to his

recommendation that equitable relief be granted with regard to the

hair length restriction.1

This conclusion deserves elaboration. Before I examine the

limits of Congress's power under § 5 of the Fourteenth Amendment,

I find it helpful to review our court's experience over the last

two decades with the Free Exercise Clause and prison hair length

restrictions. In my opinion, this background underscores the

appropriateness of considering the constitutional question and
-30-

facilitates an appreciation of the context in which that question

arises.

In 1975, our court decided Teterud. The majority opinion

describes Hamilton's reliance on Teterud as "misplaced," see note

12 supra, even though it involved a similar hair length issue and

was decided before O'Lone. In Teterud, a Native American inmate

challenged the constitutionality of a Missouri prison regulation

which prohibited him from wearing long hair. Id. at 358. The

district court applied the compelling interest test of Wisconsin v.

Yoder, 406 U.S. 205, 215 (1972) (Yoder), and found that the

regulation was an unconstitutional restriction on the inmate's

exercise of his Native American religion. Specifically, "[t]he

district court found the wearing of long braided hair to be a tenet

of the Indian religion sincerely held by [the inmate]. It further

found that the interest of penal administration advanced by [the

warden] could be served by viable, less restrictive means."

Teterud, 522 F.2d at 359. We held that neither of these findings

was clearly erroneous. In response to the warden's argument that,

inter alia, long hair caused identification problems and presented

the opportunity for contraband smuggling, we agreed with the

district court's finding that the warden's justifications were

either without substance or overly broad. Id. at 361.

The compelling interest test that we applied to invalidate the

prison hair length restriction in Teterud, however, was not to

survive the Supreme Court's decisions in O'Lone and Turner. See

Iron Eyes, 907 F.2d at 813 (recognizing that Teterud was limited to

its facts and that the compelling interest test had been rejecting

by the Supreme Court when evaluating free exercise challenges to

prison regulations).

Turner involved a Missouri prison regulation relating to

inmate marriages and inmate-to-inmate correspondence. 482 U.S. at

81. The district court held that regulations allowing inmate
-31-

marriage only with the warden's permission when compelling reasons

were present, and limiting inmate-to-inmate correspondence between

unrelated inmates on nonlegal matters, were unconstitutional. We

affirmed and applied strict scrutiny to conclude that the two

regulations were not the least restrictive means of achieving the

asserted goals of rehabilitation and security. Id. at 83. The

Supreme Court reversed, holding that we improperly applied the

heightened standard of Procunier v. Martinez, 416 U.S. 396, 413-14

(1974), and that, instead, we should have determined whether the

prison regulation which burdened a fundamental right was reasonably

related to a legitimate penological interest. Turner, 482 U.S. at

87. Specifically, the Court set out a four-part test under which

to analyze the challenged prison regulation. Id. at 89-90.

Applying this test, the Court upheld the correspondence regulation

but invalidated the marriage restriction. Id. at 100.

O'Lone was decided shortly after Turner. O'Lone involved an

inmate's challenge to several prison regulations which prevented

Muslim inmates from attending Jumu'ah, a weekly congregational

service commanded by the Koran. The Court reversed because it

concluded that the court of appeals had improperly imposed a

separate burden on prison officials to prove that no reasonable

method existed by which prisoners' religious rights can be

accommodated without creating bona fide security risks. Id. at

350. The Court again reiterated the standard that had recently

been stated in Turner and stressed that this "reasonableness" test,

which was less restrictive than that applied to alleged

infringements of fundamental constitutional rights outside the

prison context, "avoid[ed] unnecessary intrusion of the judiciary

into problems particularly ill-suited to resolution by decree."

Id. at 349-50 (quotation marks and citations omitted).

In the wake of these two Supreme Court decisions, we again

faced an inmate's free exercise challenge to a prison hair length

restriction in Iron Eyes. The plaintiff, a Sioux Indian, relied on
 2

We note that in Iron Eyes v. Henry, 907 F.2d 810 (8th Cir.

1990) (Iron Eyes), the prison did provide a procedure through which

an inmate could apply for an exemption from the prohibition against

long hair. That exemption was eliminated after the appeal in Iron

Eyes was taken under submission. Id. at 815 n.7. However, in a

subsequent decision, our court affirmed a district court's decision

to dismiss, on the basis of our holding in Iron Eyes, a complaint

filed by an inmate who challenged the same hair length restriction

at the same facility when the exemption no longer existed.

Campbell v. Purkett, 957 F.2d 535 (8th Cir. 1992) (per curiam);

accord Bettis v. Delo, 14 F.3d 22 (8th Cir. 1994) (upholding

Missouri prison hair length regulation). 

 3In its report to the Congress on RFRA, the Senate Judiciary

Committee explained: "As applied in the prison and jail context,

the intent of the act is to restore the traditional protection

afforded to prisoners to observe their religions which was weakened

by the decision in O'Lone v. Estate of Shabazz." S. Rep. No. 111,

103d Cong., 1st Sess. 9 (1993), reprinted in 1993 U.S.C.C.A.N.

1892, 1899. The Committee also found that "the compelling interest

standard established set forth [sic] in the Act will not place

undue burdens on prison authorities." Id. at 11. Finally, the

Committee concluded that no special exemption for prison free

exercise claims under the Act was necessary. Id.

-32-

Teterud as support for his free exercise claim. We noted, however,

the effect of O'Lone and Turner on the legal landscape of inmate

challenges to prison regulations allegedly infringing upon

fundamental rights, applied the less onerous reasonableness test,

and held that the neutral grooming regulation was rationally

related to prison security interests and therefore did not

unreasonably infringe upon the inmate's fundamental right to freely

exercise his religion.2 907 F.2d at 816.

This review of our caselaw makes clear that, but for the

passage of RFRA, Hamilton could not have succeeded on his free

exercise challenge to the prison hair length regulation. Hamilton

argues that, because RFRA restored the compelling interest test of

Yoder, the controlling Eighth Circuit case on prison hair length

regulation is once again Teterud.3 The magistrate judge, through
 4

The magistrate judge carefully considered the "restored"

compelling interest test set out in RFRA. He first made a finding

that Hamilton's beliefs were sincerely held, and then concluded the

hair length regulation and the prohibition against sweat lodge

ceremonies substantially burdened Hamilton's exercise of his

religion. While the magistrate judge recognized the compelling

governmental interest in prison security, the magistrate judge

determined that defendants had not satisfied their burden of

demonstrating the hair length regulation was the least restrictive

means of furthering that interest. The magistrate judge noted, in

response to fears of contraband smuggling, that women incarcerated

in Missouri correctional facilities were not required to keep short

hair, and the magistrate judge also found significant the testimony

of two male inmates who were photographed with long hair but not

photographed again after their hair had been cut short. In Teterud

v. Burns, 522 F.2d 357, 361 (8th Cir. 1975), our court affirmed the

district court's rejection of similarly expressed concerns about

contraband smuggling and inmate identification as inadequate

justification for the hair length regulation.

 5See Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir.) ("The

recent passage of [RFRA] legislatively overturned a number of

recent Supreme Court decisions, including Turner and [O'Lone], by

defining a statutory (if not constitutional) right to the free

exercise of religion."), cert. denied, 115 S. Ct. 2625 (1995).

-33-

his analysis, implicitly accepted this argument, as do I.4

Consequently, I believe that we are squarely faced with the

question whether Congress had the power to enact RFRA and thereby

supplant the Supreme Court's prior free exercise decisions,

including O'Lone and Turner, and our own circuit precedent.5 

C.

Defendants argue that RFRA is unconstitutional because

Congress lacks authority under § 5 of the Fourteenth Amendment to

interfere with the state's operation of its prisons. They contend

that the Supreme Court has defined what rights inmates have

pursuant to the Free Exercise Clause by applying the reasonableness

test set forth in O'Lone and Turner. They maintain that RFRA

establishes a different test applicable to prisons, and therefore,

creates religious rights for prisoners that otherwise would not

exist. Defendants argue that § 5 does not give Congress the power
 6

See City of Rome v. United States, 446 U.S. 156 (1980)

(holding § 5 of the Voting Rights Act of 1965 was a valid exercise

of congressional power under § 2 of the Fifteenth Amendment);

Oregon v. Mitchell, 400 U.S. 112 (1970) (Mitchell) (holding inter

alia that Congress could set the age requirement for national

elections but not state or local elections); Katzenbach v. Morgan, 384 U.S. 641 (1966) (Morgan) (holding § 4(e) of the Voting Rights

Act was a valid exercise of Congress's enforcement power under § 5

of the Fourteenth Amendment).

-34-

to change the constitutional holdings in O'Lone and Turner. They

maintain that the only basis for affirming the judgment, in light

of prior precedent, is the change made by Congress in RFRA and that

RFRA is an unconstitutional extension of congressional power.

Defendants conclude that § 5 is not an available basis for the

enactment of RFRA because it is merely an "enforcement" provision

which is limited to providing remediation consistent with the goals

of the Fourteenth Amendment. They therefore reason that RFRA

cannot be said to be "enforcing" a religious exercise right when

the Supreme Court had held that there was no such right.

Hamilton, and the government, on the other hand, maintain that

RFRA's enactment represents a valid exercise of congressional

authority under § 5. They argue that, because the Due Process

Clause of the Fourteenth Amendment incorporates the First

Amendment, nothing in § 5 limits Congress's ability to legislate

the procedures to be used to vindicate free exercise claims. The

government contends that Congress's § 5 power extends beyond the

authority merely to prohibit specific constitutional violations by

the states and that § 5 empowers Congress to legislate

prophylactically by proscribing or regulating conduct that,

although not unconstitutional, threatens or infringes upon the

exercise of Fourteenth Amendment rights. Both Hamilton and the

government contend that numerous Supreme Court decisions support

their broad interpretation of Congress's power under § 5.6

Further, the government argues that RFRA not only promotes the

Fourteenth Amendment's free exercise guarantee, but also enforces
 7

The Oregon Supreme Court held that peyote use was proscribed

by the state's drug laws; however, the court also concluded that

this prohibition was invalid under the Free Exercise Clause.

Employment Div. v. Smith, 494 U.S. 872, 875 (1990).

-35-

the Equal Protection Clause by protecting against religious

discrimination. The government states emphatically that RFRA

creates a statutory, not constitutional, free exercise right. The

government admits that the separation of powers doctrine protects

the specific constitutional judgments of the federal courts from

legislative interference, and recognizes the Supreme Court's

paramount authority to interpret the Constitution; the government

asserts, however, that RFRA is simply a statute that provides

legislative protection for a constitutional right over and above

that provided by the Constitution.

D.

As noted in the majority opinion, supra note 8, RFRA was

passed in response to the Supreme Court's decision in Employment

Division v. Smith, 494 U.S. 872 (1990) (Smith). In Smith, two

members of the Native American Church claimed that the state

unfairly denied them unemployment compensation because their

religious use of peyote, which resulted in their job termination,

was determined to be disqualifying "misconduct." Id. at 876.

After remand to the Oregon Supreme Court for a determination as to

the legality of peyote use,7 the Supreme Court held that the Free

Exercise Clause permitted Oregon to prohibit sacramental peyote use

and therefore to deny the payment of unemployment benefits to the

Native Americans discharged for using peyote. Id. at 890. In so

holding, the Court rejected the application of the compelling

interest test to free exercise claims which challenged neutral and

valid laws of general applicability. Id. at 885. All parties in

the present case agree that we should not, and indeed could not,

decide whether the decision of the Court in Smith was correct as a

matter of constitutional law. Rather, our analysis should focus on
 8

In a footnote to its brief, the government suggests that RFRA

is also a valid exercise of congressional power under the Commerce

Clause. Brief for Plaintiff-Intervenor at 33 n.16. We note,

however, that the only basis suggested in the legislative history

to RFRA, and in the main text of the government's brief, is § 5 of

the Fourteenth Amendment. For many of the same structural reasons

cited in this dissenting opinion, which preclude § 5 from

supporting RFRA's constitutionality, I cannot conclude, based on

the very limited treatment of the issue by the government, that the

Commerce Clause is a valid basis for the enactment of RFRA.

-36-

whether § 5 of the Fourteenth Amendment provides a basis for

Congress's enactment of RFRA.8 For the reasons stated below, I

would hold that it does not.

"The powers of the legislature are defined and limited; and

that those limits may not be mistaken or forgotten, the

constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch)

137, 176 (1803) (Marbury). While the Constitution was carefully

drafted to protect the states from undue intrusion by the federal

government, the Supreme Court has recently reminded us that "[t]he

Civil War Amendments . . . worked a dramatic change in the balance

between congressional and state power over matters of race." City

of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989); see

Oregon v. Mitchell, 400 U.S. 112, 129 (1970) (Mitchell) (Black,

J.). The most legally far-reaching of these Amendments, the

Fourteenth, provides the fundamental principles of equal protection

and due process of law. Although this Amendment was enacted in

response to our country's shameful history of slavery and racial

discrimination, many of the protections set forth in the Bill of

Rights have been applied to the states through the Due Process

Clause of the Fourteenth Amendment, including the protections of

the First Amendment. See Cantwell v. Connecticut, 310 U.S. 296,

303 (1940) ("The fundamental concept of liberty embodied in that

Amendment embraces the liberties guaranteed by the First

Amendment."). Section 5 of the Fourteenth Amendment states that

"[t]he Congress shall have power to enforce, by appropriate

legislation, the provisions of this article." U.S. CONST. amend.
-37-

XIV, § 5. Because it is "emphatically the province and duty of the

judicial department to say what the law is," Marbury, 5 U.S. at

177, we should determine whether RFRA falls within the scope of

legislative power granted to Congress by § 5, as it has been

interpreted by the courts.

The issue of whether Congress's power under § 5 of the

Fourteenth Amendment is the same when it acts to enforce an

incorporated right as when it acts to remedy or to prevent a

violation of the Fourteenth Amendment itself has not been expressly

decided. See Hutto v. Finney, 437 U.S. 678, 718 (1978) (Rehnquist,

J., dissenting). An argument could be made, based on both

historical perspective and the logic of the doctrine of

incorporation itself, that Congress's power to enforce incorporated

rights under § 5 should be circumscribed. See Mitchell, 400 U.S.

at 129 ("Where Congress attempts to remedy racial discrimination

under its enforcement powers, its authority is enhanced by the

avowed intention of the framers of the Thirteenth, Fourteenth, and

Fifteenth Amendments."). The Supreme Court has not had an occasion

to resolve this issue. Nor would it be necessary, in my opinion,

for this panel decide this particular issue in the present case

because I believe that RFRA is unconstitutional, even assuming

Congress's powers under § 5 are not variable.

The leading case on the scope of Congress's power under § 5 is

Katzenbach v. Morgan, 384 U.S. 641 (1966) (Morgan). In Morgan, the

Supreme Court referred to § 5 as "a positive grant of legislative

power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the

guarantees of the Fourteenth Amendment." Id. at 651. That case

considered whether § 4(e) of the Voting Rights Act of 1965, 42

U.S.C. § 1973b(e), was "appropriate legislation" to enforce the

Equal Protection Clause. In respects pertinent to the cases under

review in Morgan, § 4(e) provides that no person who has

successfully completed the sixth grade in a public school in, or a
-38-

private school accredited by, the Commonwealth of Puerto Rico in

which the language of instruction was other than English shall be

denied the right to vote in any election because of his or her

inability to read or write English. The State of New York

challenged the statute because it conflicted with the state's

requirement that voters be able to read and write English. Morgan,

384 U.S. at 643-45. The Court, however, held that section 4(e) was

"a proper exercise of the powers granted to Congress by § 5 of the

Fourteenth Amendment." Id. at 646.

New York argued that an exercise of congressional power under

§ 5 could only be sustained if the state law which was invalidated

by the legislative action was itself violative of the Fourteenth

Amendment. The Court disagreed and held that "[a] construction of

§ 5 that would require a judicial determination that the

enforcement of the state law precluded by Congress violated that

Amendment, as a condition of sustaining the congressional

enactment, would depreciate both congressional resourcefulness and

congressional responsibility for implementing the Amendment." Id.

at 648. In its discussion of the scope of § 5, the Court explained

that "the draftsmen sought to grant to Congress, by a specific

provision applicable to the Fourteenth Amendment, the same broad

powers expressed in the Necessary and Proper Clause." Id. at 650;

see Ex parte Virginia, 100 U.S. 339, 345-46 (1879) (delineating the

scope of § 5 powers); see also South Carolina v. Katzenbach, 383

U.S. 301, 326 (1966) (Katzenbach) (applying the McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819), standard to the

enforcement provision of the Fifteenth Amendment).

Analyzing § 4(e) under this broad standard, the Court provided

two alternative bases for its conclusion that § 4(e) was a proper

exercise of § 5 power. These two bases have been referred to by

the commentators as the remedial theory and the substantive theory
 9

See Daniel O. Conkle, The Religious Freedom Restoration Act:

The Constitutional Significance of an Unconstitutional Statute, 56

Mont. L. Rev. 39 (1995). Explaining the alternative rationales of

Morgan, Justice Stewart in Mitchell stated:

The Court's opinion made clear that Congress could impose

on the States a remedy for the denial of equal protection

that elaborated upon the direct command of the

Constitution, and that it could override state laws on

the ground that they were in fact used as instruments of

invidious discrimination even though a court in an

individual lawsuit might not have reached that factual

conclusion.

400 U.S. at 296 (Stewart, J., concurring in part and dissenting in

part).

-39-

of § 5 power.9 The Court first considered a remedial justification

for the enactment of § 4(e). Explaining the enactment of § 4(e) as

a measure to enforce the Equal Protection Clause, the Court stated

in Morgan: "Section 4(e) may be viewed as a measure to secure for

the Puerto Rican community residing in New York nondiscriminatory

treatment by government--both in the imposition of voting

qualifications and the provision or administration of governmental

services . . . ." Morgan, 384 U.S. at 652. The Court further

provided that the statute was plainly adapted to furthering the

aims of the Equal Protection Clause because it "enable[d] the

Puerto Rican minority of New York better to obtain perfect equality

of civil rights and the equal protection of the laws." Id. at 653

(quotation marks omitted). The Court concluded that, where

Congress has assessed and weighed the various conflicting

considerations, the statute would be upheld as long as a basis

could be perceived upon which Congress might have resolved the

conflicting considerations as it did. Id. 

This conclusion, based on a remedial approach, in no way

rested on the possibility that Congress determined the enactment or

application of the state's English literacy requirement had as its

purpose the perpetuation of invidious discrimination. As Justice

Stewart understood the first Morgan rationale, Congress could have
 10While we employ this terminology occasionally throughout our

opinion, we do not believe, as will be discussed later, that the

second Morgan rationale for § 4(e)'s validity under § 5 is properly

characterized as substantive.

-40-

concluded that "enhancing the political power of the Puerto Rican

community by conferring the right to vote was an appropriate means

of remedying discriminatory treatment in public services."

Mitchell, 400 U.S. at 295 (Stewart, J., concurring in part and

dissenting in part). In other words, the Morgan Court concluded

that, by ensuring that the Puerto Rican community was not denied

that right which is "preservative of all rights," Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886), Congress rationally enacted

§ 4(e) to "enforce and effectuate the judicially determined

constitutional prohibition on racial discrimination by government."

Daniel O. Conkle, The Religious Freedom Restoration Act: The

Constitution Significance of an Unconstitutional Statute, 56 Mont.

L. Rev. 39, 47 (1995); see Fullilove v. Klutznick, 448 U.S. 448,

477 (1980) (plurality opinion).

The Court then provided a second basis for Congress's

enactment of § 4(e) which it believed would also make § 4(e)

"appropriate legislation" under § 5. This was the so-called

substantive theory.10 The Court prefaced this portion of its

analysis as follows: "The result is no different if we confine our

inquiry to the question whether § 4(e) was merely legislation aimed

at the elimination of an invidious discrimination in establishing

voter qualifications." Id. at 653-54. In this section, the Court

reviewed the factual determination which Congress may have made

regarding the particular purpose behind the New York's English

literacy law. The Court noted that Congress might have questioned

both the role that prejudice played in the passage of the state law

and further questioned the public policy concerns and the way in

which the state legislature resolved them. Clearly, this type of

review is within the ambit of Congress's "specially informed
 11In Morgan, the Court took notice of the evidence of the

discriminatory attitudes which likely influenced the enactment in

1916 of the New York English literacy requirement. 384 U.S. at 654

n.14.

 12Seven years before Morgan, the Supreme Court upheld a facial

challenge to a North Carolina law nearly identical to the New York

law struck down by § 4(e) of the Voting Rights Act. See Lassiter

v. Northampton Election Bd., 360 U.S. 45 (1959). The Court was

careful to note that the "issue of discrimination in the actual

application of the ballot laws of North Carolina" had not been

presented in the state court below, and would not therefore be

reached. Id. at 50.

-41-

legislative competence." Id. at 656. Thus, the Court concluded

that 

it is enough that we perceive a basis upon which Congress

might predicate a judgment that the application of New

York's English literacy requirement to deny the right to

vote to a person with a sixth grade education in Puerto

Rican schools in which the language of instruction was

other than English constituted an invidious

discrimination in violation of the Equal Protection

Clause.

Id. In other words, Congress could look to the legislative intent

behind the state law,11 the substance of the state law, and the

competing policy considerations, and form the belief that the

application of the law was indeed an invidious discrimination which

would violate the Equal Protection Clause, as that clause had been

expounded by the Court. Furthermore, so long as the Court could

perceive a basis for this legislative judgment, the exercise of § 5

power would be valid. 

When Congress acts to invalidate a law that is neutral on its

face but unconstitutionally discriminatory in application or

intent,12 it necessarily employs its superior factfinding

capabilities and policymaking acumen to eradicate the effects of

discrimination and prevent future constitutional violations which

a federal court, because of its Article III limitations, for

example, may not be able to address readily. I therefore think
 13In fact, the Senate Judiciary Committee expressly stated that

"the purpose of this act [was] only to overturn the Supreme Court's

decision in Smith." S. Rep. No. 111, at 12. 

-42-

that the second Morgan theory is best understood to allow Congress

to address those facially neutral activities which may have

unconstitutional underpinnings, and not as a rationale that grants

Congress a substantive power under § 5 to define the scope of

constitutional guarantees. With this understanding of Morgan's

alternative rationales, I proceed to consider whether § 5 can

provide a basis for Congress's enactment of RFRA.

E.

I begin my analysis of RFRA with the congressional findings,

42 U.S.C. § 2000bb(a), to highlight the diametrically opposed

positions of the Supreme Court and Congress on the nature of the

Free Exercise Clause and to demonstrate the a priori quality of

these congressional findings. In short, the language of these

findings portrays Congress, not as a political organ well-suited to

conduct the business of empirical research and policy

implementation, but as a super-Supreme Court.13 Finding (2) which

states that "laws neutral toward religion may burden religious

exercise as surely as laws intended to interfere with religious

exercise" is clearly not the product of extensive factfinding but

the result of a logician's exercise. Id. § 2000bb(a)(2). Finding

(3) further states that "governments should not substantially

burden religious exercise without compelling justification." Id.

§ 2000bb(a)(3). As the stated purposes of RFRA reveal, this

finding is nothing more than the Congress's adoption of the

standard set forth in the pre-Smith Supreme Court decisions in

Sherbert v. Verner, 374 U.S. 398 (1963) (Sherbert), and Yoder,

which the Supreme Court has specifically rejected as unworkable and
 14See Scott C. Idleman, The Religious Freedom Restoration Act:

Pushing the Limits of Legislative Power, 73 Tex. L. Rev, 247, 313

(1994) ("In the specific case of RFRA . . . the relevance of

Congress's factfinding capacity is not entirely obvious. For one

thing, the rejection of judicial balancing in Employment Division

v. Smith was arguably a normative, and not empirically contingent,

judgment about the meaning of free exercise and the nature of the

judiciary.").

-43-

unnecessary in free exercise cases.14 See Smith, 494 U.S. at 888-

90. Nevertheless, Congress provided in its final stated finding

that "the compelling interest test as set forth in prior Federal

court rulings is a workable test for striking sensible balances

between religious liberty and competing prior governmental

interests." 42 U.S.C. § 2000bb(a)(5). In essence, Congress has

instructed the Supreme Court how to interpret the Free Exercise

Clause of the First Amendment (that is, apply the compelling

interest test), even though the Court, the entity charged by the

Constitution with its application, has determined that the

compelling interest test is neither feasible nor required. It

hardly needs to be said that where Congress and the Supreme Court

are so clearly at odds with each other over the definition of a

fundamental right, the conflict presents an obvious and serious

threat to the delicate balance of the separation of powers.

In his opinion for the Court in Smith, Justice Scalia

explained the problematic aspects of the compelling interest test

in the context of free exercise cases:

The government's ability to enforce generally

applicable prohibitions of socially harmful conduct, like

its ability to carry out other aspects of public policy,

cannot depend on measuring the effects of a government

action on a religious objector's spiritual development.

To make an individual's obligation to obey such a law

contingent upon the law's coincidence with his religious

beliefs, except where the State's interest is

"compelling" -- permitting him, by virtue of his beliefs,

to become a law unto himself, contradicts both

constitutional tradition and common sense.
 15See, e.g., Alameen v. Coughlin, 892 F. Supp. 440, 448

(E.D.N.Y. 1995) ("[T]o impose a substantial burden, government

interference must be more than an inconvenience. The interference

must burden a belief central to a plaintiff's religious doctrine."

(citation omitted)).

-44-

494 U.S. at 885 (internal citations and quotation marks omitted).

The Court could not have been clearer in its expression of the view

that the compelling interest test of Yoder and Sherbert should be

abandoned as inconsistent with its constitutional judgment. Yet,

through RFRA, Congress expressly intended "to restore the

compelling interest test as set forth in [Sherbert] and [Yoder] and

to guarantee its application in all cases where free exercise of

religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1). 

Moreover, in direct contravention of the Court's analysis in

Smith, the "substantially burdened" element of RFRA requires courts

to weigh the centrality of an adherent's religious practice.

Further exposing the failings of the compelling interest test in

free exercise cases, Justice Scalia wrote: "Repeatedly and in many

different contexts, we have warned that courts must not presume to

determine the place of a particular belief in a religion or the

plausibility of a religious claim." Smith, 494 U.S. at 887. Yet,

by injecting the "substantially burdened" element into a court's

RFRA analysis, Congress would require courts to weigh the extent of

an alleged infringement upon a religious practice against the

importance of that practice.15 In fact, predictably, defendants in

the present case have argued that RFRA does not apply to the

challenged prison prohibitions because they merely "impinged"

rather than "substantially burdened" Hamilton's free exercise of

religion. Brief for Appellants at 16. This type of argument is

exactly what troubled the Court when it explained its inability to

constitutionally apply the compelling interest test to free

exercise claims challenging generally applicable laws. See Smith,

494 U.S. at 888-89.
-45-

Justice Scalia further explained the distinction between the

application of the compelling interest test in cases of race

discrimination, or the content regulation of speech, and matters of

free exercise of religion: "What it produces in those other

fields--equality of treatment and an unrestricted flow of

contending speech--are constitutional norms; what it would produce

here--a private right to ignore generally applicable laws--is a

constitutional anomaly." Id. at 886. I believe that this

observation sheds considerable light upon the contours of § 5 as

discussed in Morgan and the validity of RFRA.

In Morgan, § 5 was held to be a valid constitutional basis for

a provision of the Voting Rights Act prohibiting the use of English

literacy tests as a prerequisite to suffrage. In that instance,

the use of § 5 as a means of furthering the cause of equal

protection was certain. Congress did not impose a standard of

review for all equal protection claims which the courts were to

employ generally; rather, under the remedial or first Morgan

theory, Congress prohibited a particular state practice in order to

root out the effects of past invidious discrimination and to reduce

the possibility of future invidious discrimination. Enacting such

a law is, however, qualitatively different from imposing upon the

Court a standard of review for free exercise claims which overrules

its prior free exercise holdings. RFRA's imposition of the

compelling interest test on all free exercise claims is nothing

less than a radical alteration of the Supreme Court's free exercise

jurisprudence.

Under the so-called substantive or second Morgan theory, the

Court concluded that Congress, after conducting its own

investigation, might have rationally determined that a facially

valid state law was enacted or applied so as to invidiously

discriminate in violation of the Equal Protection Clause. Again,

in the present case, Congress did not, in an exercise of its

superior factfinding capacity, take aim at a particular neutrally-
-46-

phrased state law which it had concluded was enacted or applied

unconstitutionally. In RFRA, Congress sought to impose a

heightened level of scrutiny on the federal courts for every type

of case in which state or federal government substantially burdens

one's religious practice. As such, Congress abdicated its

responsibility to investigate the particular state action which

might have the potential of unconstitutionally burdening the free

exercise of religion, and instead, Congress has required the courts

to investigate, under a standard previously rejected by the Supreme

Court, the myriad cases in which plaintiffs claim their religious

practice has been substantially and unjustifiably burdened. It is

thus clear that the substantive or second Morgan rationale as well

fails to support Congress's "restoration" of the compelling

interest test to all free exercise claims brought in federal court.

I believe that what Congress has done through RFRA's passage

under the banner of § 5 is dramatically different from its exercise

of § 5 power in Morgan or in any other case to date. In Smith, the

Supreme Court, consistent with its constitutional duty under

Marbury, concluded that the scope of the First Amendment guarantee

of free exercise did not require the imposition of a heightened

level of scrutiny on neutral laws of general applicability, even

though such laws may burden religious practice. When the Court so

held, it was performing it most essential and solemn function: it

interpreted the scope of the Free Exercise Clause and determined

that neutral laws of general applicability passed constitutional

muster. In passing RFRA, the Congress did not invalidate a state

law or state prison regulation as violative of, or even

inconsistent with, the goals of the Fourteenth Amendment; rather,

Congress substantively altered the Supreme Court's understanding of

what the Free Exercise Clause actually means. 

Were we to uphold RFRA on the basis of § 5, we would, under

our reading of Smith, allow Congress to impose a standard for the

judicial evaluation of all free exercise claims which not only
 16See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490

(1989) ("The power to 'enforce' may at times also include the power

to define situations which Congress determines threaten principles

of equality and to adopt prophylactic rules to deal with those

situations."); see also Christopher V. Eisgruber & Lawrence G.

Sager, Why the Religious Freedom Restoration Act is

Unconstitutional, 69 N.Y.U. L. Rev. 437, 453-54 (1994) ("RFRA's

compelling state interest test privileges religious believers by

giving them an ill-defined and potentially sweeping right to claim

exemption from generally applicable laws, while comparably serious

secular commitments -- such as those flowing from parental

obligation, philosophical conviction, or lifelong cultural practice

-- receive no such legal solicitude.").

-47-

overrules prior free exercise decisions but also, in the considered

and paramount judgment of the Supreme Court, leads to

constitutionally anomalous results. Where, as here, Congress acts

under the aegis of § 5 to impose on the judiciary a method of

analysis for the resolution of all claims based on the fundamental

right of free exercise, which in the Court's view, does not produce

"equality of treatment" but constitutional anomalies, such

legislative action, I think, must be beyond the language and

constitutional intent of § 5.16 I believe that, through RFRA,

Congress does not seek simply to enhance the protection afforded by

the Free Exercise Clause, but to define it. I therefore conclude

that RFRA is unconstitutional. Accord Flores v. City of Boerne,

877 F. Supp. 355, 356-57 (W.D. Tx. 1995); In re Tessier, No. 94-

31615-13, 1195 WL 736461 (Bankr. D. Mont. Dec. 8, 1995).

F.

I recognize that several district court decisions have upheld

RFRA as constitutional. See, e.g., Sasnett v. Department of

Corrections, 891 F. Supp. 1305, 1315-21 (W.D. Wis. June 23, 1995)

(Sasnett); Belgard v. Hawaii, 883 F. Supp. 510, 512-17 (D. Haw.

1995) (Belgard) (followed by Abordo v. Hawaii, 902 F. Supp. 1220,

1229-34 (D. Haw. 1995)). However, I disagree with the reasoning of

those cases. In Belgard, much like the present case, the plaintiff

was a Native American who challenged various prison regulations
-48-

including a hair length restriction. 883 F. Supp. at 511. Hawaii

argued that RFRA was unconstitutional because it represented

"congressional usurpation of functions entrusted exclusively to the

judiciary, including delineation of the boundaries of

constitutional rights and calibration of the proper balance between

competing interests of constitutional magnitude." Id. at 513.

Rejecting the state's argument, the district court relied heavily

on Morgan. Specifically, the district court made much of the fact

that the Supreme Court declined to overrule Lassiter v. Northampton

Election Bd., 360 U.S. 45 (1959) (Lassiter), and, "despite the

statute's vitiation of Lassiter, sustained the constitutionality of

section 4(e) of the Voting Rights Act." Belgard, 883 F. Supp. at

514. The district court, seizing upon the substantive or second

Morgan theory, stated that the Supreme Court's alternate rationale

for sustaining § 4(e) was "a legislative judgment that the literacy

requirement violated the Equal Protection Clause per se." Id.

Because of this apparent direct conflict between Lassiter and

§ 4(e), the district court concluded that Congress had the power to

"expressly disagree with the Court as to the reach of

constitutional rights." Id. (citation omitted).

I believe the district court in Belgard read the scope of the

Morgan holding too broadly. To properly understand the limits of

the substantive or second Morgan theory, I revisit Lassiter. In

that case, the plaintiffs brought only a facial challenge to a

North Carolina literacy requirement nearly identical to the New

York requirement in Morgan. As noted in Belgard, the Court

concluded that "'literacy and illiteracy are neutral on race.'"

Id. at 515 (quoting Lassiter, 360 U.S. at 51). However, the

Lassiter Court importantly noted: "Of course a literacy test, fair

on its face, may be employed to perpetuate that discrimination

which the Fifteenth Amendment was designed to uproot. No such

influence is charged here." 360 U.S. at 53. The Lassiter holding

did not preclude the possibility that a constitutional challenge to

the application of the North Carolina literacy requirement might
 17But see Note, When The Supreme Court Restricts Constitutional

Rights, Can Congress Save Us? An Examination of Section 5 of the

Fourteenth Amendment, 141 U. Pa. L. Rev. 1029, 1061 (1993)

(concluding that the second Morgan theory "holds that Congress can

expressly disagree with the Court as to the reach of constitutional

rights").

-49-

not be successful. See Katzenbach, 383 U.S. at 333. This sheds

considerable light on the substantive or second Morgan theory of

§ 5 power. The Supreme Court simply noted that, under § 5,

Congress could examine the effect of, and the policy decisions

behind, a literacy requirement and determine that "the application

of New York's literacy requirement" was invidious discrimination.

Morgan, 384 U.S. at 656. Thus, Lassiter and Morgan were not

constitutionally inconsistent.17 The Morgan Court did not, by

implication, provide that Congress could disagree with the Supreme

Court's constitutional judgment; rather, Morgan provided that

Congress could determine that a literacy requirement, adjudged to

be facially valid, may in application constitute invidious

discrimination in violation of the Fourteenth Amendment's Equal

Protection Clause. Therefore, I believe the district court in

Belgard was incorrect to conclude that "Morgan held that Congress

acted within its enforcement authority under section 5 of the

Fourteenth Amendment when, pursuant to section 4(e) of the Voting

Rights Act, it limited prior Supreme Court doctrine in order to

expand a right guaranteed by the Fourteenth Amendment." Belgard

883 F. Supp. at 516. By failing to appreciate the limits of

Lassiter, the district court in Belgard implied that the Supreme

Court's decision in Morgan interpreted § 5 more broadly than it

actually did.

I find Sasnett equally unavailing. Sasnett involved a

challenge brought by a number of Wisconsin prison inmates against

prison rules regulating the types of personal property they could

possess. In holding RFRA constitutional, the district court in

Sasnett also placed great reliance on Morgan. The court followed
-50-

a line of reasoning similar to that of Belgard and concluded:

"Lassiter was to the Voting Rights Act what Smith is to the

Religious Freedom Restoration Act." 891 F. Supp. at 1317. It

should be clear from my analysis thus far that I believe the

Belgard and Sasnett courts have read Lassiter too broadly and

thereby perceived a false conflict between Lassiter and Morgan.

Lassiter's holding was clearly limited to the facial challenge to

the North Carolina literacy requirement. In Morgan, the Court

simply determined that Congress's judgment that the facially

neutral literacy requirement was in application an example of

invidious discrimination violative of equal protection would not be

upset as long as the Court could perceive a basis for this

conclusion. A proper understanding of the precise interplay of

these two Supreme Court decisions demonstrates the limits of

Morgan. Morgan does not support the passage of RFRA as a valid

exercise of § 5 power.

The Sasnett court also offered an alternative remedial

justification for Congress's use of § 5 power to enact RFRA. Under

this approach, the district court concluded that "Congress has not

attempted to define the First Amendment; rather, it has merely

prohibited otherwise lawful activity as a means of further

enforcing constitutional rights." 891 F. Supp. at 1318. This is,

in essence, the "statutory, not constitutional" right argument

which the government advances in the present case. The Sasnett

court found it "obvious" that RFRA is a rational means of

safeguarding the core constitutional right to free exercise, as

judicially defined." Id. Explaining Congress's intent in passing

RFRA, the district court continued: "Congress determined that

requiring plaintiffs to prove that state actors intended to

discriminate on the basis of religion creates an evidentiary

barrier to the full protection of constitutional rights. . . . It

was wholly rational for Congress to have concluded that [RFRA]

would add greater protection to First Amendment guarantees." Id.

at 1319.
-51-

Again, I believe that the Sasnett court's reliance on Morgan

was misplaced. The Sasnett court concluded that the only way RFRA

"substantively altered the scope of federal rights to free

religious exercise was by obviating proof of discriminatory intent

on the part of state actors." Id. However, I believe there is an

important difference between a congressional enactment which

invalidates a state law or practice in the absence of

discriminatory intent, see Morgan, 384 U.S. at 652-53; see also

City of Rome v. United States, 446 U.S. 156 (1980), and a

congressional enactment which summarily imposes an across-the-board

standard for the evaluation of free exercise claims that the

Supreme Court has criticized and abandoned. Through RFRA's

passage, Congress did not attempt to root out a particular evil,

such as literacy tests, which were often means for perpetuating

racial discrimination, but simply expressed the normative judgment

that "governments should not substantially burden religious

exercise without compelling justification." 42 U.S.C.

§ 2000bb(a)(3). This is the role given to the Supreme Court, not

Congress, by the Constitution. 

RFRA is neither remedial nor supplemental, but definitional.

Morgan upheld a law which, as the Court indicated, Congress might

have rationally concluded would either remedy past invidious

discrimination or prevent future discriminatory conduct. In RFRA,

however, Congress establishes a rejected method of analysis for all

free exercise claims simply because Congress interprets the Free

Exercise Clause differently than the Supreme Court. This is not

prophylaxis but unconstitutional interbranch hegemony. As Justice

Harlan stated in Mitchell, "[to] allow a simple majority of

Congress to have final say on matters of constitutional

interpretation is . . . fundamentally out of keeping with the

constitutional structure." 400 U.S. at 205 (Harlan, J., concurring

in part and dissenting in part). Consequently, I would hold that

the enactment of RFRA was not a valid exercise of § 5 power. To

hold otherwise would be inconsistent with the essence of judicial
 18Because I would hold that Congress was without power to enact

RFRA under § 5 of the Fourteenth Amendment, I would not reach

defendants' arguments that RFRA violates the Tenth Amendment and,

as applied, violates the Establishment Clause.

-52-

review and the separation of powers. See Flores v. City of Boerne,

877 F. Supp. 355 (W.D. Tex. 1995) (holding RFRA unconstitutional

under the separation of powers doctrine). Section 5 grants

Congress the power to supplement, not subvert, the Supreme Court's

underlying constitutional jurisprudence.

III.

Because Congress does not have the power under § 5 of the

Fourteenth Amendment to enact RFRA, I would hold that the Religious

Freedom Restoration Act is unconstitutional.18 Accordingly, I would

vacate the judgment of the district court and remand the case for

further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.