Tayr Kilaab al Ghashiyah v. Wisconsin Dept. of Corrections

Tayr Kilaab al Ghashiyah is a Muslim prisoner currently incarcerated is a prisoner at the Green Bay Correctional Institution (GBCI) in Green Bay, Wisconsin.

On January 5, 2001, he filed a lawsuit pro se against the Wisconsin Department of Corrections (DOC) and various prison officials, alleging that they had violated the First Amendment of the U.S. Constitution and RLUIPA when they refused to provide him with a diet required by his faith, and by refusing to allow him to possess candles, incense, oil and the like. He also challenged DOC's refusal to permit him to use his Muslim name.

On May 17, 2002, DOC attorneys moved for dismissal of the lawsuit on grounds that refusing a prisoner incendiary materials does not violate the First Amendment, that the defendants were entitled to qualified immunity, and because RLUIPA is unconstitutional. On June 13, 2002 the case was certified to the U.S. Attorney General, and the Justice Department moved to intervene on August 8.

After briefing from both sides, on March 4, 2003 U.S. District Judge Lynn Adelman issued a 40 page decision and order (PDF format, 1.7 MB - very large file) declaring RLUIPA unconstitutional and dismissing charges brought under the act. She did not, however, dismiss the First Amendment claim regarding oil, incense and candles, noting that one prison regulation allows "opportunities for ceremonial smoking, smudging and the use of incense consistent with its policy on use of smoking materials." And she denied the motion to dismiss on grounds of qualified immunity, "in light of the Seventh Circuit's admonition that it is almost never proper to dismiss a complaint under Rule 12(b)(6) on qualified immunity grounds."

With regard to RLUIPA, Judge Adelman's reasoning followed closely that of Judge Turk in Madison v. Riter, issued a few months earlier. "RLUIPA violates the second and third prongs of the Lemon test because its primary effect is to advance religion, and because it fosters an excessive entanglement between government and religion." At another point, Judge Adelman inserts several pages taken directly from Judge Turk's opinion.

Dismissing Justice Department arguments that "the Act merely frees religious individuals to practice as they otherwise would in the absense of certain state-imposed regulations," Judge Adleman declared that "although that may be the stated purpose of RLUIPA, I conclude that the Act has the primary effect of advancing religion, in violation of the Establishment Clause."

On the "entanglement" question, Judge Adelman held that RLUIPA "fails under this prong because it forces the states to become involved with, knowledgable about, and exceedingly sensitive to the varied religious practices of their inmates. It also forces the federal courts to become involved in prison administration, an area that the Supreme Court has admonished judges to avoid."

The decision makes extensive use of law review articles by academic critics of RLUIPA, and includes a large excerpt from an article by Professor Marci Hamilton in the University of Pennsylvania Journal of Constitutional Law, "The Religious Freedom Restoration Act is Unconstitutional, Period." It also follows a by-now familiar pattern in government briefs challenging RLUIPA, quoting extensively from Justice Stevens' concurrence in City of Boerne, including: "In my opinion . . . RFRA is a 'law respecting an establishment of religion' that violates the First Amendment to the Constitution." Judge Adelman's opinion does not note that he is the only sitting Justice on the Supreme Court who holds that opinion. (RFRA was invalidated on grounds that it violated the Fourteenth Amendment, not the First Amendment.)

On March 18, 2003, The Becket Fund agreed to represent Ghashiyah for the sole purpose of defending the constitutionality of RLUIPA in an appeal to the Seventh U.S. Circuit Court of Appeals. On March 25, 2003 The Becket Fund asked Judge Adelman to certify the case for interlocutory appeal to the Seventh Circuit. The request notes that the Wisconsin Department of Corrections is already arguing its position on RLUIPA in another case, Charles v. Verhagen (in which RLUIPA's constitutionality was upheld), already before the appeals court, and that "as a matter of fairness and to avoid any prejudice to his rights, [Ghashiyah] should be given a similar opportunity to brief the issue to the Seventh Circuit."

On March 28, 2003, Judge Adelman issued a decision and order in which he found that "the requirements for an interlocutory appeal are met," and certified "the following question for an interlocutory appeal: Does 42 U.S.C. § 2000cc-1 violate the Establishment Clause of the First Amendment?" Judge Adelman stayed further proceedings in the case pending resolution of the issue by the court of appeals.

On April 25, 2003, the Seventh Circuit granted The Becket Fund permission for the interlocutory appeal, but suspended briefing "until such time as a decision is rendered in appeal no. 02-3572," Charles v. Verhagen, in which Judge Crabb reached the opposite conclusion regarding RLUIPA's constitutionality. The Seventh Circuit affirmed the lower court ruling in Charles in a decision issued on October 30, 2003, rejecting both Spending Clause and Establishment Clause challenges to RLUIPA.

In mid-September, Ghashiyah filed a motion directly with the Seventh Circuit without contacting The Becket Fund, asking that his appeal be withdrawn. The Becket Fund, which had agreed to represent him only for the purposes of defending the constitutionality of RLUIPA on appeal, withdrew from the case when Ghashiyah refused to reconsider his position. It remains before the Seventh Circuit, however, because the United States had joined the case earlier as an intervening plaintiff.

On November 5, 2003, the Justice Department filed a statement with the Seventh Circuit, asking that the appeals court overturn Judge Adelman's ruling: "The district court's conclusion that the statute violates the Establishment Clause is directly at odds with this court's opinion in Charles. In light of the controlling contrary decision in Charles, the Court should summarily reverse the decision and order of the district court in this case." DOJ added that "In light of the decision in Charles, there is no need for plenary briefing or oral argument to resolve the Establishment Clause issue presented here."

(Tayr Kilaab al Ghashiyah v. Wisconsin Dept. of Corrections, et al., U.S. District Court for the Eastern District of Wisconsin, Case No. 01-C-10; U.S. Court of Appeals for the Seventh Circuit, Case No. 03-2194)

Articles & News Items

• "Federal court in Wisconsin asked to certify prisoner case for appeal," March 28, 2003
• "Federal judge allows appeal of RLUIPA constitutionality ruling," March 31, 2003