In Fox v. Washington, (6th Cir., June 26, 2023), the U.S. 6th Circuit Court of Appeals held that the Michigan Department of Corrections had not adequately justified its refusal to recognize Christian Identity as a religion for purposes of the Michigan prison system. The court had previously remanded the case for the state to demonstrate that it met the requirement under RLUIPA that it has a compelling governmental interest in not recognizing Christian Identity, and that it has employed the least restrictive means in doing so. The state focused on the safety concerns growing out of the white supremacist ideology of the religious movement. The 6th Circuit concluded that this is insufficient, in part because the prison system had not considered alternatives short of non-recognition, saying in part:
Begin with the Department’s “policy directive” for “religious beliefs and practices of prisoners.” It plainly does not allow unfettered group worship simply because the Department recognizes a religion....
RLUIPA ... requires an individual inquiry even when group worship is the sought accommodation.... Indeed, each plaintiff testified that he was nonviolent and would prevent others from acting aggressively at group services. The Department offered silence in response—it did not, for example, present any evidence that plaintiffs or any other inmates who follow Christian Identity are violent. True, Bechler linked Christian Identity to racial violence outside the prison setting. But nothing in the record links plaintiffs to any prison violence, racially motivated or otherwise. In short, the Department presented evidence regarding Christian Identity as a whole, but not concerning plaintiffs. In failing to conduct an individualized inquiry, the Department’s decision-making process was deficient....
Although the record links Christian Identity to white nationalist groups, nothing in the record addresses how many Christian Identity adherents are members of those groups. The Department has the burden to show that refusing to recognize Christian Identity is the least restrictive means to advance facility security.... It cannot meet that burden by simply gesturing toward some Christian Identity adherents being members of white supremacist groups and rely on this court to fill in the gaps....
AP reports on the decision.
