The U.S. 8th Circuit Court of Appeals has joined the 4th, 5th, 6th and 7th Circuits in holding that while RLUIPA's prisoner provisions are an appropriate use of Congress' spending power, states do not waive their sovereign immunity from damage claims under the Act by accepting federal prison funds. The 11th Circuit has taken the opposite position. In Van Wyhe v. Reisch, (8th Cir., Sept. 10, 2009), the court also held that the Civil Rights Remedies Equalization Act of 1986 (42 USC Sec. 2000d-7) which provides for the waiver of sovereign immunity by states for claims under any "Federal statute prohibiting discrimination by recipients of Federal financial assistance" does not apply to the institutionalized persons section of RLUIPA. The case involved claims by a Jewish inmate in the South Dakota State Penitentiary who wanted time and facilities to study Hebrew and who wanted to eat his meals outside in a sukkah during the Jewish holiday of Sukkkot.
In an amusing confusion of Hebrew terms, in denying plaintiff's request for an injunction giving him additional group study time to learn Hebrew, the court said: "his religion considers learning Hebrew to be a 'mikvah,' or 'good deed'." The court, of course meant "mitzvah". A "mikvah" is a ritual immersion pool. (See prior related posting.)
