Federal Judiciary

Finally, Some Questions about the Wisdom of RLUIPA

By Robert Loblaw

Koger v. Bryan, 05-1904 (7^th Cir., April 24, 2008)

Remember the Religious Freedom Restoration Act? That law, designed to protect religious practices from government interference, went on life support in 1997 when the Supreme Court declared that the statute was unconstitutional as applied to state and local governments. So in response, Congress enacted the stronger and tougher Religious Land Use and Institutionalized Persons Act. (Its acronym is usually pronounced “ri-LOOP-ah.”)

RLIUPA has spawned all kinds of litigation, particularly from state and federal prisoners who want to eat special meals. This case is a shining example. Plaintiff Gregory Koger was a Baptist when he entered Illinois state prison, but he went through several religious transformations while incarcerated, filing numerous requests for a special religious diet along the way. Eventually, Koger settled on Thelema, a religion founded by famed devil worshipper Aleister Crowley, whose golden rule is not “Do Unto Others . . .,” but rather “Do What Thou Wilt.” And Koger decided that for him, “Do What Thou Wilt” meant eating a special vegetarian diet. But the prison said, “Oh no you won?t.” So Koger sued, claiming that the prison was substantially burdening his religious exercise in violation of RLUIPA. And he is pursuing his suit even though he has completed his sentence and is now a free man, free to eat whatever diet he pleases.

Skeptics might think that Koger was, and still is, simply on a mission to game the system. But under RLUIPA, he?s got a triable claim. Accordingly, the Seventh Circuit reverses the district court?s decision granting summary judgment for prison officials. Judge Evans concurs but takes the opportunity to comment on the wisdom of RLUIPA. He writes,

RLUIPA, I submit, fosters the potential for mischief and game-playing. Koger?s case is, potentially at least, a pretty good example of that. . . . [W]as his request for a nonmeat diet a mere preference (he practiced yoga) or the result of a sincerely held religious belief? On this record, we have no reason to doubt that it was the latter. But one would not be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison a little over two years ago.

. . .

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney?s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

I know I already said this once this month, but it bears repeating . . .

Can I get an Amen?

Full post as published by Decision of the Day on April 24, 2008 (boomark / email).