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Amicus Curiae Brief in the US Supreme Court for Faith Organizations

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No. 18-355
IN THE

Supreme Court of the United States
PRISON LEGAL NEWS,

Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
BRIEF OF FAITH ORGANIZATIONS AS AMICI CURIAE IN
SUPPORT OF PETITIONER
JOHNATHAN SMITH
SIRINE SHEBAYA
NIMRA AZMI

BRIAN H. PANDYA

Counsel of Record

ANDREW G. WOODSON
KRYSTAL B. SWENDSBOE
TATIANA SAINATI
A. LOUISA BROOKS
MICHAEL L. DIAKIWSKI

MUSLIM ADVOCATES
P.O. Box 34440
Washington, DC 20043
(202) 897-2622
johnathan@muslimadvocates.org WILEY REIN LLP
sirine@muslimadvocates.org
1776 K Street, N.W.
nimra@muslimadvocates.org
Washington, DC 20006
(202) 719-7000
BPandya@wileyrein.com
October 19, 2018

Counsel for Amici Curiae

-iTABLE OF CONTENTS

Page
TABLE OF AUTHORITIES...................................... iii
STATEMENT OF INTEREST .................................... 1
SUMMARY OF THE ARGUMENT ............................ 5
ARGUMENT ............................................................... 8
I.

Introduction ....................................................... 8

II.

The Supreme Court Should Grant Certiorari
to Correct the Eleventh Circuit’s Exercise of
Unquestioning Deference to the FDOC. ........ 10

III.

A.

The Unquestioning Deference Exercised
by the Eleventh Circuit is Contrary to
this Court’s Precedents. ....................... 10

B.

To Resolve Conflicting Standards of
Deference Among the Circuits, this
Court Should Clarify the Showing
Required to Satisfy the First Turner
Factor. .................................................. 14

The Court Should Grant Certiorari Because
the Exercise of Unquestioning Deference
Greatly Affects the Religious Practices of
Incarcerated Persons. ..................................... 18
A.

The Eleventh Circuit’s Overly
Deferential Review Threatens

- ii TABLE OF CONTENTS
Page(s)
Incarcerated Persons’ Access to
Religious Texts ..................................... 18
B.

The Eleventh Circuit’s Exercise of
Unquestioning Deference Will Harm
the Ability of Incarcerated Persons
Who Identify with a Minority
Religious Practice to Freely Practice
Their Faith. .......................................... 23

CONCLUSION .......................................................... 26

- iii TABLE OF CITED AUTHORITIES

Page(s)
Cases

Beard v. Banks,
548 U.S. 521 (2006) .................................. 10, 11, 12

Bell v. Wolfish,
441 U.S. 520 (1979) ................................................ 8

Boerne v. Flores,
521 U.S. 507 (1997) .............................................. 23

Boles v. Neet,
486 F.3d 1177 (10th Cir. 2007) ............................ 24

Brown v. Phillips,
801 F.3d 849 (7th Cir. 2015) ................................ 15

Cooper v. Pate,

382 F.2d 518 (7th Cir. 1967), rev’g on remand
378 U.S. 546 (1964) .............................................. 20

Crime Justice & America, Inc. v. Honea,
876 F.3d 966 (9th Cir. 2017) .......................... 14, 15

Cutter v. Wilkinson,
544 U.S. 709 (2005) .............................................. 23

Holt v. Hobbs,
135 S. Ct. 853 (2015) ...................................... 12, 13

Knuckles v. Prasse,
435 F.2d 1255 (3d Cir. 1970) ......................... 20, 21

- iv TABLE OF CITED AUTHORITIES
(Continued)
Page(s)

Overton v. Bazzetta,
539 U.S. 126 (2003) .............................................. 11

Perry v. Secretary, Florida Department
of Corrections,
664 F.3d 1359 (11th Cir. 2011) ................ 14, 16, 20

Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001) ........................ 14, 15

Salahuddin v. Goord,
467 F.3d 263 (2d Cir. 2006) ................................. 24

Singer v. Raemisch,
593 F.3d 529 (7th Cir. 2010) ................................ 14

Sutton v. Rasheed,
323 F.3d 236 (3d Cir. 2003) ................................. 21

Thornburgh v. Abbott,
490 U.S. 401 (1989) .......................................... 8, 10

Turner v. Safley,

482 U.S. 78 (1987) ........................................ passim

Walker v. Maschner,
No. 4:98-CV-10159, 2005 WL 8141553 (S.D. Iowa
July 8, 2005), report and recommendation
adopted sub nom. Ben–Kushi v. Kautzky, No.
4:03-CV-40038, 2005 WL 8136542
(S.D. Iowa Dec. 20, 2005) ..................................... 21

-vTABLE OF CITED AUTHORITIES
(Continued)
Page(s)

Wolf v. Ashcroft,
297 F.3d 305 (3d Cir. 2002) ................................. 15
Statutes
42 U.S.C. § 2000bb .................................................... 23
42 U.S.C. § 2000cc ..................................................... 23
42 U.S.C. § 2000cc-1 .................................................. 12
Other Authorities
Israr Ahmed, The Obligations Muslims Owe to the
Qur’an (1973) ....................................................... 17
Aleph Institute, Educational Material & Literature,
https://bit.ly/2EvUDGh ........................................ 20
Neela Banerjee, Prisons to Restore Purged Religious
Books, N.Y. Times (Sept. 26, 2007),
https://nyti.ms/2pWfvwq ...................................... 22
Todd R. Clear, et al., Does Involvement in Religion
Help Prisoners Adjust to Prison? 7, NCCD Focus
(Nov. 1992), https://bit.ly/2P8af6R ...................... 19
Ronald L. Eisenberg, The 613 Mitzvot: A

Contemporary Guide to the Commandments of
Judaism (2005) ..................................................... 18

- vi TABLE OF CITED AUTHORITIES
(Continued)
Page(s)
Freedom Through Christ Prison Ministry, Freedom
Through Christ Prison Ministry,
https://bit.ly/2S1gSGH ......................................... 20
Laurie Goodstein, Prisons Purging Books on Faith
from Libraries, N.Y. Times (Sept. 10, 2007),
https://nyti.ms/2Cozprn ....................................... 22
Human Rights Defense Center, 2017 Annual Report,
https://bit.ly/2EJhHlh ............................................ 6
Byron R. Johnson, Religious Programs and

Recidivism Among Former Inmates in Prison
Fellowship Programs: A Long-Term Follow-Up
Study, 21 Just. Q. 329 (Aug. 19, 2006)................ 18

Joint Statement of Senator Hatch and Senator
Kennedy on the Religious Land Use and
Institutionalized Persons Act of 2000, 146 Cong.
Rec. S7775 (daily ed. July 27, 2000).................... 22
John MacArthur, How to Study the Bible (2009) .... 17
Pew Forum on Religion & Public Life, Religion in

Prisons, A 50-State Survey of Prison Chaplains
(Mar. 22, 2012), https://pewrsr.ch/2NQ8k26 ...... 19

Prison Fellowship, Providing Bibles for Prisoners,
https://bit.ly/2ypEjBE .................................... 19, 20

- vii TABLE OF CITED AUTHORITIES
(Continued)
Page(s)
Prison Legal News, HRDC Litigation Project,
https://bit.ly/2RZsHgI ............................................ 6
Protecting Religious Freedom After Boerne v. Flores
(Part III): Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary,
105th Cong. 3, 38 (Statement of Isaac M.
Jaroslawicz, Director of Legal Affairs for the
Aleph Institute) .............................................. 22, 23
United States Commission on Civil Rights, Enforcing
Religious Freedom in Prison (Sept. 2008) 7, 21, 22,
23
Aamir Wyne, Dear God, Give Me Back My Books:

The Standardized Chapel Library Project and
Free Exercise Rights, 11 U. Pa. J. Const. L. 1135
(2009) .................................................................... 21

-1STATEMENT OF INTEREST1
Amici Curiae, Central Pacific Conference United
Church of Christ, Freedom Through Christ Prison Ministry,
Muslim Advocates, Muslim Urban Professionals, National
Council of Jewish Women, National Religious Campaign
Against Torture, the Sikh Coalition, and T’ruah, are
organizations that work to protect and advance the rights
and liberties of people of all faiths, including those of
America’s incarcerated population. Amici are deeply
concerned about overbroad restrictions on the ability of
incarcerated persons to receive publications or news—
including religious materials—and the impact such
restrictions will also have on incarcerated persons’ ability to
obtain religious materials and exercise their faith. The
Eleventh Circuit Court of Appeals exercised nearly
unbridled deference to the Florida Department of
Corrections’s (“FDOC”) establishment of prison regulations
that substantially limit incarcerated persons’ First
Amendment rights. This decision places Amici’s members
and beneficiaries at great risk of far more direct restrictions
on their ability to distribute religious materials and
impinges on the free exercise rights of incarcerated
persons.

Pursuant to Supreme Court Rule 37.6, no counsel for a
party authored this brief in whole or in part, and no such counsel
or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
amicus curiae, or its counsel, made a monetary contribution to
its preparation or submission. The parties have consented to the
filing of this brief by filing a letter documenting consent with the
Court. The parties have also been given appropriate notice.
1

-2The Central Pacific Conference United Church
of Christ (“CPC”) is a community of United Church of
Christ congregations in Oregon, southern Idaho, and
southern Washington. This family of forty-five
congregations shares a commitment to ministry and
missions. The CPC provides spiritual and material
resources and encouragement to its 7,600 members,
including ministry resources for Christian education
programs. The CPC assists and encourages local
congregations and their members in working together
to explore, communicate, support, and pursue the
ministry and mission of the church, and provides a
channel for effective relationships with the UCC and
with other faith communities.
Freedom Through Christ Prison Ministry
(“FTCPM”) is a “pen pal” letter and mail-based ministry,
connecting incarcerated persons with volunteer ministers,
churches, and individuals of faith outside of prison. These
volunteers correspond and share letters, provide spiritual
support, and engage in Bible study with members of the
prison population. FTCPM is a registered member of the
International Network of Prison Ministries, a global
coalition of approximately 4,800 prison ministries,
chaplains, and volunteers that provide incarcerated persons
and their families with resources such as counseling
services, religious literature, Bible study courses, and prayer
request support. Although registered in Florida, FTCPM is
a nationwide ministry organization with an average annual
membership of 5,000 incarcerated persons across the United
States.
Muslim Advocates works on the frontlines of civil
rights to guarantee freedom and justice for Americans of all
faiths. In pursuit of this vision, Muslim Advocates’s mission

-3is to promote equality, liberty, and justice for all by providing
leadership through legal advocacy, policy engagement, and
civic education, and by serving as a legal resource to promote
the full and meaningful participation of Muslims in
American public life. The organization has advocated for
incarcerated persons in cases where prison policies overly
restrict the practice of their religion, including a federal
complaint filed in June 2018 on behalf of Muslims prevented
from practicing their religious beliefs in a federal correctional
facility. Muslim Advocates has also previously joined the
American Civil Liberties Union and diverse faith
organizations in opposing a Bureau of Prisons rule depriving
incarcerated persons of access to religious materials.
Muslim Urban Professionals (“Muppies”) is a
nonprofit, charitable organization dedicated to empowering
and advancing Muslim business professionals to be leaders
in their careers and communities. Its mission is to create a
global community of diverse individuals who will support,
challenge, and inspire one another by providing a platform
for networking, mentorship, and career development.
Muppies represents an engaged group of Muslim
professionals that believe the rights of all Americans,
including incarcerated persons, should be protected from
infringement. Muppies opposes any policy that results in a
reduction of opportunity or inclusion for any individuals or
groups.
The National Council of Jewish Women
(“NCJW”) is a grassroots organization of 90,000
volunteers and advocates who turn progressive ideals
into action. Inspired by Jewish values, NCJW strives
for social justice by improving the quality of life for
women, children, and families and by safeguarding
individual rights and freedoms. NCJW’s Resolutions

-4state that NCJW resolves to work for “[t]he
enactment, enforcement, and preservation of laws and
regulations that protect civil rights and individual
liberties for all.”
National Religious Campaign Against Torture
(“NRCAT”) is a membership organization committed to
ending torture and cruel, inhuman, and degrading
treatment in the United States. Since its formation in
January 2006, more than 320 religious organizations have
joined NRCAT, and over 67,000 individual people of faith
have participated in its activities. These participants include
evangelical Christians, Roman Catholics, Orthodox
Christians, mainline Protestants, Muslims, Jews, Sikhs,
Hindus, Baha'is, and Buddhists. Member organizations
include national denominational and faith group bodies,
regional entities such as state ecumenical agencies, and local
religious organizations and congregations. NRCAT
advances interfaith principles of dignity, community, and
restorative justice to guide its work related to the United
States prison system.
The Sikh Coalition is the largest communitybased Sikh civil rights organization in the United
States. Since its inception on September 11, 2001, the
Sikh Coalition has worked to defend civil rights and
liberties for all people, empower the Sikh community,
create an environment where Sikhs can lead a
dignified life unhindered by bias or discrimination,
and educate the broader community about Sikhism.
The Sikh Coalition joins this brief out of the belief that
the religious liberties deserve protection under any
circumstances, but particularly in situations
involving incarcerated or institutionalized persons

-5who depend on adequate laws to protect their access
to freedoms of speech and religious expression.
T’ruah: The Rabbinic Call for Human Rights
(“T’ruah”) is an organization bringing together rabbis and
cantors from all streams of Judaism, as well as all members
of the Jewish community, to advance the human rights of all
people. T’ruah’s wide-ranging work is fundamentally based
in protecting and expanding human rights. Related to
incarcerated individuals, T’ruah works in coalition with
groups that are led by formerly incarcerated people and their
families to support a criminal justice system that keeps all
members of society safe, that protects the dignity and
humanity of those convicted of crimes, and that prioritizes
forgiveness over punishment. T’ruah works, in part, to
ensure human rights protections for incarcerated
individuals.
SUMMARY OF THE ARGUMENT
Over three decades ago, this Court held that
“[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution.”
Turner v. Safley, 482 U.S. 78, 84 (1987). Now, in a case
that touches upon our Nation’s most cherished
constitutional freedoms—the freedoms of speech and
of the press—the Eleventh Circuit has given prison
administrators near-unbridled discretion to infringe
upon these, and consequently other, fundamental
rights.
This case is about the Eleventh Circuit’s
unprecedented exercise of deference to the FDOC. The
FDOC imposed a blanket ban on the distribution of
Prison Legal News, a monthly publication distributed

-6to prisons nationwide that deals with issues of
interest to incarcerated persons, including unlawful
prison practices and civil rights prison litigation.
Despite evidence showing that this regulation was an
“exaggerated response” to the claimed security
concerns, the Eleventh Circuit upheld that blanket
ban. Instead of requiring the FDOC to provide
meaningful factual support demonstrating that its
regulation was “reasonably related to legitimate
penological interests”—as it must under Turner, 482
U.S. at 89—the Eleventh Circuit inexplicably relied
upon unsubstantiated, wide-ranging “deference” to
side-step the FDOC’s evidentiary burden. In essence,
the Eleventh Circuit provided prison officials with
unrestrained authority to stop—based on supposition
and absent any evidentiary support—the flow of
information and ideas into prisons, including (in this
case) information about incarcerated persons’ basic
legal
rights.
Such
uncritical
deference
is
inappropriate under this Court’s precedents, and the
Eleventh Circuit’s reliance on deference, over
evidence, is in direct conflict with the application of
the Turner standard in at least three other Circuits.
Further, this exercise of deference puts incarcerated
persons’ other constitutional rights, including their
free exercise rights, at great risk of infringement by
prison regulations.
Amici are concerned by this development,
which threatens to give unbridled deference to
decisions made by prison officials, regardless of the
evidence supporting those decisions or their impact on
the rights of incarcerated persons. The Eleventh
Circuit’s extraordinary deference to the FDOC has

-7consequences that go far beyond the single publication
at issue in this case and could extend to religious
publications sent to incarcerated persons. Petitioner
alone sends out thousands of issues of Prison Legal
News each month to incarcerated subscribers in all
fifty states and has been involved in more than fifty
suits challenging similar publication bans in prisons.
See Human Rights Defense Center, 2017 Annual
Report 3, 16-23, https://bit.ly/2EJhHlh; Prison Legal
News, HRDC Litigation Project (last visited Oct. 18,
2018), https://bit.ly/2RZsHgI. Moreover, the Turner
standard of review is regularly litigated in court, with
more than 15,000 case and litigation citations to the
case on Westlaw—many those cases addressing prison
regulations that infringe on the religious practice of
incarcerated persons—exemplifying the threat that
the Eleventh Circuit’s decision, which upholds
deference without supporting evidence, would bear on
such free exercise.
The Eleventh Circuit’s extreme deference has
particularly troubling ramifications for the protection
of other First Amendment rights. Incarcerated
persons’ religious practices, and access to religious
texts, are frequently limited by prison regulations.
Religious minorities often bear the brunt of those
regulations due to prison officials’ lack of knowledge,
understanding, or even bias towards certain faiths
and practices. The Eleventh Circuit’s opinion creates
a grave risk that such regulations will be given
improper deference in the future and will interfere
with the ability of Amici to distribute religious
materials to prisoners and impinge on the free
exercise rights of incarcerated persons. Rather than

-8allow these risks to persist for the tens of thousands
of incarcerated persons who identify as religious—and
the approximately twenty-five percent of federal
incarcerated person who identify as members of a
religious minority, United States Commission on Civil
Rights, Enforcing Religious Freedom in Prison 13
(Sept. 2008) (“Enforcing Religious Freedom in
Prison”)—this Court should grant certiorari to correct
the Eleventh Circuit’s distortion of the relevant legal
standard.
ARGUMENT
I.

Introduction

This Court has repeatedly held that
incarcerated persons, and publishers who wish to
communicate with them, do not sacrifice their First
Amendment rights at the prison gates. “[C]onvicted
prisoners do not forfeit all constitutional protections
by reason of their conviction and confinement in
prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979).
Further, “there is no question that publishers who
wish to communicate with those who, through
subscription, willingly seek their point of view have a
legitimate First Amendment interest in access to
prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408
(1989).
The unique circumstances of incarceration led
the Court, in Turner, to establish a separate legal
standard for determining “when a prison regulation
impinges on inmates’ constitutional rights.” 482 U.S.
at 89. Under the Turner standard, a prison regulation
is “valid if it is reasonably related to legitimate

-9penological interests.” Id. This standard is designed to
balance the “policy of judicial restraint regarding
prisoner complaints and . . . the need to protect
constitutional rights.” Id. at 85. To determine whether
a reasonable relationship exists, a court must consider
four factors, including whether there is “a ‘valid
rational connection’ between the prison regulation
and the legitimate governmental interest put forward
to justify it.” Id. at 89 (citation omitted).
The Eleventh Circuit’s decision represents a
drastic and unwarranted expansion of Turner that if
left unchecked will harm Amici’s ability to minister to,
and advocate on behalf of, incarcerated persons. This
expansion will also severely interfere with the ability
of incarcerated persons to exercise their faith. The
FDOC’s blanket ban on the distribution of Prison
Legal News to Florida incarcerated persons should
have been a clear First Amendment violation. As
Petitioner ably argued in the lower courts, the FDOC
failed to demonstrate a reasonable relationship
between the blanket ban on publications and specific
concerns about institutional security, namely that the
ad content in Prison Legal News encouraged
incarcerated persons to violate prison rules. Indeed,
the evidence presented below demonstrated that the
regulation was an “exaggerated response” to the
FDOC’s security concern, not least because no other
corrections department impounds Prison Legal News
based on its ad content.
When confronted with Petitioner’s challenge,
however, the Eleventh Circuit misconstrued this
Court’s precedents, granting to the FDOC
unquestioning deference regarding the ban. This error

- 10 creates a dangerous standard that, if left uncorrected,
will significantly impact Amici’s activities, as well as
the free exercise of incarcerated persons’ religious
practices.
II.

The Supreme Court Should Grant Certiorari to
Correct the Eleventh Circuit’s Exercise of
Unquestioning Deference to the FDOC.

The
Eleventh
Circuit
exercised
an
unprecedented and improper level of deference to the
FDOC. The Eleventh Circuit’s decision distorted this
Court’s Turner standard and allowed the FDOC to
shirk its evidentiary burden in the name of
“deference” to institutional expertise. Such deference
goes far beyond this Court’s precedents, and that of
the other circuits, and creates a dangerous precedent
for future First Amendment challenges to prison
regulations by incarcerated persons.
A.

The Unquestioning Deference Exercised
by the Eleventh Circuit is Contrary to
this Court’s Precedents.

Turner explains that courts should give some
deference to prison officials in matters that are within
their specific area of expertise. That standard does not
require the extensive deference the Eleventh Circuit
exercised here. As this Court has explained before, the
“reasonableness
standard
is
not
toothless.”
Thornburgh, 490 U.S. at 414. Prison officials must
“show[] more than simply a logical relation.” Beard v.
Banks, 548 U.S. 521, 533 (2006). Instead, prison
officials must demonstrate “a reasonable relation”

- 11 between a prison regulation and a legitimate
penological objective. Id. The exercise of deference
does not relieve the prison officials’ burden to
demonstrate that reasonable relationship when
regulations infringe on important constitutional
rights.
A close look at the Turner opinion
demonstrates that, contrary to the Eleventh Circuit’s
analysis, deference does not obviate prison officials’
obligation to prove a reasonable relationship between
the challenged regulation and any identified security
concern. The Turner opinion addressed two
regulations: one regulation barred correspondence
between incarcerated persons and the other strictly
regulated marriage for incarcerated persons. The
Court upheld the first regulation, specifically relying
on the evidence presented by the prison officials, the
absence of “[o]bvious, easy alternatives,” and the
existence of similar restrictions imposed by “[o]ther
well-run prison systems.” Turner, 482 U.S. at 93. In
contrast, the Court rejected the second regulation
because evidence demonstrated the existence of easy
alternatives and showed that prison officials generally
had “experienced no problem with the marriage of
male inmates,” prior to the implementation of the
regulation. Id. at 98. Deference was not applicable
because the regulation “represent[ed] an exaggerated
response” to the identified security concerns and the
evidence failed to demonstrate a connection between
those security concerns and the regulation imposed.
Id. at 97-98. Thus, in Turner, deference was only
appropriate after the prison officials had met their
evidentiary burden.

- 12 Later cases by the Supreme Court do not
change this approach: deference to prison official
expertise is only appropriate after the prison officials
have demonstrated the proper relationship between
the challenged regulation and the identified security
concerns. In Beard v. Banks, for example, the Court
upheld the challenged prison regulation because the
prison officials submitted summary judgment
evidence that supported the connection between the
regulation and a particular security concern, and
Banks did not present any counter evidence, thereby
admitting to the facts as presented by the prison
officials. 548 U.S. at 529-30. Similarly, in Overton v.
Bazzetta, the Court upheld challenged prison
regulations because the prison officials had
demonstrated that the regulations were reasonably
related to legitimate penological interests; the
evidence revealed that alternative means of exercising
the right were available and that the regulation was
not an exaggerated response. 539 U.S. 126, 135-36
(2003). Indeed, the Court noted that “if faced with
evidence that [the] regulation is treated as a de facto
permanent ban on all visitation for certain inmates,
[it] might reach a different conclusion.” Id. at 134.
Finally, in a similar case addressing the exercise of
deference, this time under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc, this Court overturned a restriction on a
Muslim incarcerated person’s ability to grow a beard.
See Holt v. Hobbs, 135 S. Ct. 853, 866-67 (2015).2 This
RLUIPA requires the application of heightened scrutiny to
prison regulations that “impose a substantial burden on the
religious exercise” of an incarcerated person. 42 U.S.C. § 2000cc2

- 13 Court rejected the Eighth Circuit’s contention that it
was “bound to defer to the Department’s assertion
that allowing [the] petitioner to grow such a beard
would undermine its interest in suppressing
contraband.” Id. at 864. Instead, this Court found that
the expertise of prison officials did not justify “the
abdication of the responsibility conferred by Congress,
to apply RLUIPA’s rigorous standard,” disclaiming
the exercise of “deference that is tantamount to
unquestioning acceptance.” Id.
Simply put, this Court has repeatedly held that
deference should be exercised only after prison
officials have met their burden of connecting the
challenged regulation to the identified security
interest. This standard protects the fragile balance
between institutional security and protecting the
constitutional rights of incarcerated persons. In the
present case, however, the Eleventh Circuit utilized
deference as a thumb on the scale in weighing the
evidence. Thus, the blanket ban on Prison Legal News
was allowed to survive, despite the absence of
evidence satisfying the Turner standard.

1; Holt, 135 S. Ct. at 860. The Turner standard, in contrast,
applies to other constitutional challenges to prison regulations,
including those brought by publishers of religious material or
entities, like the Amici, that would seek to provide religious
material. See Beard, 548 U.S. at 528-29. Thus, the
misapplication of the already lower and more deferential Turner
standard is of great concern to Amici as external groups who
would seek to engage in prison ministry or provide incarcerated
persons with religious texts or materials.

- 14 B.

To Resolve Conflicting Standards of
Deference Among the Circuits, this
Court Should Clarify the Showing
Required to Satisfy the First Turner
Factor.

The Eleventh Circuit concluded that adherence
to Turner mandated upholding of the FDOC’s blanket
ban on Prison Legal News. Yet other Circuits applying
Turner have struck down prison mail regulations in
similar contexts. The key difference among the
Circuits stems from application of the first Turner
factor, i.e., whether there is “a ‘valid rational
connection’ between the prison regulation and the
legitimate governmental interest put forward to
justify it.” 482 U.S. at 89. This “rational relationship
factor . . . is a sine qua non” of the Turner test, Prison
Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir.
2001), and “can act as a threshold factor regardless of
which way it cuts,” Singer v. Raemisch, 593 F.3d 529,
534 (7th Cir. 2010). The Eleventh Circuit’s approach
to this factor is overly broad, categorically requiring
no evidence to support an identified security concern.
See App-26; see also Perry v. Sec’y, Fla. Dep’t of
Corrs., 664 F.3d 1359, 1363, 1366 (11th Cir. 2011)
(rejecting a challenge to a prison regulation that
banned pen-pal solicitation correspondence because,
“[a]lthough the FDOC does not cite any specific
instances of fraud within Florida,” the court
determined there was a logical connection between
such correspondence and preventing incarcerated
persons from using pen-pal solicitation services to
defraud people). This approach results in almost per
se deference to prison officials. The appropriate first-

- 15 factor analysis employed by other Circuits requires at
least some evidence to connect the challenged
regulation to the penological interests that the prison
claims to advance. To rectify the disparate application
of a test that affects core First Amendment rights—
including the ability of incarcerated persons to obtain
religious texts and to freely practice their religion—
this Court should confirm that a reasonable
evidentiary threshold must be satisfied under the first
Turner factor.
In a series of cases, the Ninth Circuit has struck
down prison mail policies where there was an
“insufficient connection between the mail policy at
issue and the asserted justification” for the policy.
Crime Justice & America, Inc. v. Honea, 876 F.3d 966,
975 (9th Cir. 2017). In one of these decisions, the court
explicitly recognized Prison Legal News as “core
protected speech” and invalidated a regulation that
prevented the publication from being delivered to
incarcerated persons. Prison Legal News, 238 F.3d at
1149. The Ninth Circuit determined that “the receipt
of such unobjectionable mail [does not] implicate
penological interests.” Id. As to the evidence required
to satisfy the first Turner factor, the Ninth Circuit has
only been persuaded to uphold a restrictive mail policy
when the prison officials provide substantive evidence
connecting the policy to a “persistent problem” at the
particular correctional facility, such as the abuse of
paper. Crime Justice & America, 876 F.3d at 970.
In similar fashion, the Third and Seventh
Circuits have rejected overly deferential analyses
under the first factor. Although the Third Circuit has
recognized that establishing a logical connection “may

- 16 be a matter of common sense in certain instances,”
other situations will “require factual development.”
Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002).
Thus, to satisfy the first Turner factor, a court “must
describe the interest served, consider whether the
connection between the policy and the interest is
obvious or attenuated—and, thus, to what extent
some foundation or evidentiary showing is necessary.”
Id. at 309. The Seventh Circuit goes further still,
requiring the government to “present some evidence
to show that the restriction is justified.” Brown v.
Phillips, 801 F.3d 849, 854 (7th Cir. 2015) (internal
quotation marks and citation omitted) (rejecting a ban
on sex offenders’ viewing of sexually explicit material
because the government’s evidence was “too feeble” to
justify the policy). In the instant case, both the Third
and Seventh Circuits’ approaches would require the
prison officials to present some evidence connecting
the blanket ban on Prison Legal News to the security
interests alleged to be advanced.
Notably, Justices Stevens, Brennan, Marshall,
and Blackmun, the four dissenting Justices in Turner,
foresaw that lower courts might interpret the first
factor too broadly, warning that the “logical
connection” standard adopted by the Court may be
“virtually meaningless.” Turner, 482 U.S. at 100
(Stevens, J., dissenting). The dissenting Justices
worried that the “logical connection” standard “would
seem to permit disregard for inmates’ constitutional
rights whenever the imagination of the warden
produces a plausible security concern and a
deferential trial court is able to discern a logical
connection” to the challenged regulation. Id. at 100-

- 17 01.
They
presciently
observed
that
the
“‘reasonableness’ standard makes it much too easy to
uphold restrictions on prisoners’ First Amendment
rights on the basis of administrative concerns and
speculation about possible security risks.” Id. at 101
n.1.
In the instant case, it is clear that the
dissenting Justices’ fears have come to pass. The
Eleventh Circuit’s misapplication of the first Turner
factor requires no evidence at all and may be satisfied
by finding a prison official who will testify that, “[i]n
his view,” the policy in question “helps” advance
security interests. App-41, -43; see also Perry, 664
F.3d at 1365 (deferring to prison official’s affidavit
which stated that correspondence threatens prison
security because “pen pals might give money to
prisoners” (emphasis added)). As discussed in more
depth below, reliance on the speculative views of
prison officials alone presents a particularly
dangerous risk of regulations that target the
unfamiliar practices of minority religions. Thus,
because the first Turner factor has become effectively
meaningless in the Eleventh Circuit, and no evidence
is required to support a regulation infringing on the
First Amendment rights of incarcerated persons, the
Court should clarify the evidentiary burden required
to satisfy this factor. That burden should not be zero.

- 18 III.

The Court Should Grant Certiorari Because the
Exercise of Unquestioning Deference Greatly
Affects the Religious Practices of Incarcerated
Persons.

The unprecedented level of deference exercised
by the Eleventh Circuit has a significant impact on
the free exercise rights of incarcerated persons. The
study of religious texts is critical in many faiths, and
access to religious materials often comes from
individuals or groups outside the prison, who are
limited by regulations like the one at issue here.
Further, religious practices by incarcerated persons
are frequent targets of unconstitutional prison
regulation. Religious minorities often bear the brunt
of those regulations due to bias or lack of
understanding on the part of prison officials. The
excessive deference exercised by the Eleventh Circuit
creates a grave risk that such regulations will be given
unquestioning approval and will interfere with the
free exercise rights of incarcerated persons.
A.

The
Eleventh
Circuit’s
Overly
Deferential
Review
Threatens
Incarcerated
Persons’
Access
to
Religious Texts

Access to external publications is one of the
primary ways that incarcerated persons obtain
religious texts and studies. Thus, the Eleventh
Circuit’s opinion—specifically, the exercise of undue
deference to regulations that limit or ban the
publication of information in prisons—threatens to

- 19 severely limit their ability to exercise their religion
through the study of religious texts.
The study of religious texts and other
educational materials is critical in many faiths. For
example, reading the Qur’an is an Islamic duty, and it
is often accomplished in the original Arabic language.
See Israr Ahmed, The Obligations Muslims Owe to
the Qur’an 6, 13-14 (1973). Judaism commands the
teaching and study of the Torah. See Ronald L.
Eisenberg, The 613 Mitzvot: A Contemporary Guide
to the Commandments of Judaism 16-17 (2005).
Christianity emphasizes the need for Bible study and
reflection through prayer. See John MacArthur, How
to Study the Bible 7-8 (2009). Access to sacred texts
and religious studies is thus critical to strengthening
faith and exercising religious beliefs.
It is well recognized that religious study and
practice has a positive impact on the incarcerated
persons who engage in such study and practice. A
1992 study by the Pew Charitable Trusts, Rutgers
University, and the National Council on Crime and
Delinquency (“NCCD”) found that involvement in
religious programs helped incarcerated persons
adjust to prison by helping them overcome depression,
guilt, and self-contempt, as well as reinforcing
attitudes and behaviors that circumvent the hustles
of prison life. Todd R. Clear, et al., Does Involvement
in Religion Help Prisoners Adjust to Prison? 7, NCCD
Focus (Nov. 1992), https://bit.ly/2P8af6R. Moreover, a
2012 survey of state prison chaplains found that
seventy-three percent of chaplains consider access to
religious programming to be “absolutely critical” for
the successful rehabilitation of incarcerated persons.

- 20 Pew Forum on Religion & Public Life, Religion in
Prisons, A 50-State Survey of Prison Chaplains 11, 74
(Mar. 22, 2012), https://pewrsr.ch/2NQ8k26; see also
Byron R. Johnson, Religious Programs and

Recidivism Among Former Inmates in Prison
Fellowship Programs: A Long-Term Follow-Up Study,
21 Just. Q. 329-54, Abstract (Aug. 19, 2006) (finding
that high rate of participation in Bible studies
significantly reduces the hazard of rearrest).

External actors, including Amici, are often the
primary providers of religious study material to
incarcerated persons. Ministries from various faiths
provide religious materials to incarcerated persons
via correspondence programs and other means that
are subject to many restrictions. For example, the
group Prison Fellowship has a program by which
individuals may provide or donate Bibles to
incarcerated persons. See Prison Fellowship,
Providing Bibles for Prisoners (last visited Oct. 18,
2018), https://bit.ly/2ypEjBE. FTCPM arranges
contact between incarcerated persons and volunteers
for the purpose of personal correspondence, providing
Bible studies, or prayer support. See Freedom
Through Christ Prison Ministry, Freedom Through
Christ Prison Ministry (last visited Oct. 18, 2018),
https://bit.ly/2S1gSGH. And the Aleph Institute is a
Jewish ministry that provides religious publications
or educational books to incarcerated persons at little
or no cost. See Aleph Institute, Educational Material
& Literature (last visited Oct. 18, 2018),
https://bit.ly/2EvUDGh. Unchecked and unduly
deferential security regulations could stifle these
programs and directly prevent incarcerated persons

- 21 from exercising a key component of their faith: the
study of religious texts.
Such considerations are not mere conjecture.
Misplaced security concerns can make it impossible
for incarcerated persons to access religious texts and
materials. For example, the Eleventh Circuit has
affirmed prison regulations barring pen-pal
solicitation
correspondence
from
Christian
organizations that connect incarcerated persons with
individuals outside the prison for the purpose of
providing spiritual guidance, Bible studies, and
prayer support. Perry, 664 F.3d at 1367. Prisons have
also denied access to Muslim periodicals and books
because, absent interpretation by a trained Muslim
minister, the texts could be subject to inference urging
defiance to prison authorities. See Knuckles v. Prasse,
435 F.2d 1255, 1256 (3d Cir. 1970); cf. Cooper v. Pate,
382 F.2d 518, 520-21 (7th Cir. 1967) (reviewing prison
regulations that denied access to “Elijah Muhammad
Muslim[]” publications because such beliefs “do not
constitute a religion”), rev’g on remand 378 U.S. 546
(1964) (per curiam); Sutton v. Rasheed, 323 F.3d 236,
254 (3d Cir. 2003) (reviewing prison regulations that
denied access to the Nation of Islam materials because
prison officials “found the documents were not
religious”); see also Walker v. Maschner, No. 4:98-CV10159, 2005 WL 8141553, at *3 (S.D. Iowa July 8,
2005) (reviewing prison regulations that prohibited
incarcerated persons from purchasing a copy of the
Torah because prison officials “understood a Torah to
be a clothing item, rather than a book”), report and

recommendation adopted sub nom. Ben–Kushi v.
Kautzky, No. 4:03-CV-40038, 2005 WL 8136542 (S.D.

- 22 Iowa Dec. 20, 2005). The highly deferential standard
of review advanced by the Eleventh Circuit severely
increases the risk that prison officials’ biases or lack
of knowledge would be used as grounds for denying
incarcerated persons’ right to engage in an important
faith practice.
The Federal Bureau of Prisons’s (“BOP”) illfated Standardized Chapel Library Project illustrates
how perceived security threats can impede access to
religious texts. The Project sought “to create lists of a
small number of pre-approved religious books for each
faith and remove all others from federal prison chapel
libraries.” Enforcing Religious Freedom in Prison at
36. The Project was roundly criticized for its
imbalanced and arbitrary treatment of religious texts
and materials and was the subject of several First
Amendment lawsuits. See id.; Aamir Wyne, Dear God,

Give Me Back My Books: The Standardized Chapel
Library Project and Free Exercise Rights, 11 U. Pa. J.
Const. L. 1135, 1155-56, 1161 (2009); Laurie
Goodstein, Prisons Purging Books on Faith from
Libraries,
N.Y.
Times
(Sept.
10,
2007),
https://nyti.ms/2Cozprn. Facing enormous pressure
from the public, BOP suspended the Project just over
three months after it launched. See Enforcing
Religious Freedom in Prison at 36; Neela Banerjee,
Prisons to Restore Purged Religious Books, N.Y.
Times (Sept. 26, 2007), https://nyti.ms/2pWfvwq.
Although short-lived, the Project serves as a reminder
of how “from indifference, ignorance, bigotry, or lack
of resources, some institutions restrict religious
liberty in egregious and unnecessary ways.” Joint
Statement of Senator Hatch and Senator Kennedy on

- 23 the Religious Land Use and Institutionalized Persons
Act of 2000, 146 Cong. Rec. S7775 (daily ed. July 27,
2000).
B.

The Eleventh Circuit’s Exercise of
Unquestioning Deference Will Harm the
Ability of Incarcerated Persons Who
Identify with a Minority Religious
Practice to Freely Practice Their Faith.

The Eleventh Circuit’s decision is particularly
threatening to incarcerated persons who engage in
minority religious practices. The vast majority of
incarcerated persons in the federal and state prison
systems identify as religious. Enforcing Religious
Freedom in Prison at 14-15. At least twenty-five
percent of federally incarcerated persons identify as
members of religious minorities, and almost ten
percent of federal incarcerated persons identify as
Muslim. Id. at 13. However, requests for religious
accommodation coming from members of minority
faiths are often “either misunderstood or viewed as a
burden on the system.” Protecting Religious Freedom
After Boerne v. Flores (Part III): Hearing Before the
Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 105th Cong. 3, 38 (1998) (Statement of
Isaac M. Jaroslawicz, Director of Legal Affairs for the
Aleph Institute). Recognition of the need to protect
minority faiths from the “extremes of insensitivity of
the institutional mindset” inspired Congress to enact
the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), 42 U.S.C. § 2000cc, after this Court
limited the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb, in Boerne v. Flores, 521 U.S. 507

- 24 (1997). As this Court recognized, through the
provisions of RLUIPA, Congress intended to provide
redress for the “arbitrary barriers [that] impede[]
institutionalized persons’ religious exercise” that
thrive under a deferential standard of judicial review.
Cutter v. Wilkinson, 544 U.S. 709, 716 (2005)
(internal quotation marks omitted).
Even with the protections of RLUIPA in place,
prison officials frequently regard incarcerated
persons’ commitment to and practice of religion
skeptically. Enforcing Religious Freedom in Prison at
31. As a result, even well-intentioned rules are
administered
unevenly,
with
the
harshest
consequences falling upon religious groups,
particularly those of minority faiths.3
Courts frequently encounter impermissible and
unsupported prison regulations that would be
acceptable under the Eleventh Circuit’s overly
deferential application of the Turner standard. An
application of the Turner standard that requires the
facility to provide meaningful support for its security
concerns is one of the best safeguards of incarcerated
persons’ religious exercise. For example, the Tenth
Circuit rejected a regulation barring incarcerated
persons from wearing a yarmulke and tallit katan
during transport for medical care, because “Warden
Neet has identified nothing . . . and we could find no
This disparity is reflected in the fact that while Muslims
constitute only 9.3% of federal prisons, Muslim prisoners bring
the highest percentage of religious discrimination grievances,
accounting for 26.3% of all grievances filed. See Enforcing
Religious Freedom in Prison at Table 2.1 & 26.
3

- 25 evidence in the record of any penological objectives
served by his actions.” Boles v. Neet, 486 F.3d 1177,
1182 (10th Cir. 2007). Similarly, the Second Circuit
rejected prison regulations requiring joint Sunni and
Shi’ite Muslim religious services for Ramadan,
denying religious practices to incarcerated persons in
disciplinary keeplock, and denying attendance at
Ramadan meals and services on days that
incarcerated persons chose to use the law library. See
Salahuddin v. Goord, 467 F.3d 263, 275-79 (2d Cir.
2006). “[D]efendants have not pointed to anything in
the record to show that they relied on legitimate
penological justifications. . . . Neither the district
court nor this court can manufacture facts out of thin
air.” Id. at 275. These examples demonstrate why it is
imperative that this Court correct the Eleventh
Circuit’s distortion of the Turner deference standard
and confirm that a reasonable evidentiary threshold
must be satisfied under the first Turner factor.
Although this case comes before the Court
through a secular vehicle, it would be a mistake to
overlook the broad significance of the unduly
deferential review the Eleventh Circuit articulated for
decisions of prison administrators. This Court’s
precedents demand a more searching inquiry for
prison regulations—one that adequately balances
legitimate
penological
goals
against
the
constitutionally protected interests of all prisoners,
including members of religious minorities, who are
particularly vulnerable to discrimination in prison.

- 26 CONCLUSION
For the reasons set forth herein, and in the
Petition, Amici Curiae Faith Organizations
respectfully request that this Court grant Petitioner’s
Petition for Writ of Certiorari.

Respectfully submitted,
JOHNATHAN SMITH
SIRINE SHEBAYA
NIMRA AZMI

BRIAN H. PANDYA

Counsel of Record

ANDREW G. WOODSON
KRYSTAL B. SWENDSBOE
TATIANA SAINATI
A. LOUISA BROOKS
MICHAEL L. DIAKIWSKI

MUSLIM ADVOCATES
P.O. Box 34440
Washington, DC 20043
(202) 897-2622
johnathan@muslimadvocates.org WILEY REIN LLP
sirine@muslimadvocates.org
1776 K Street, N.W.
nimra@muslimadvocates.org
Washington, DC 20006
(202) 719-7000
BPandya@wileyrein.com
October 19, 2018

Counsel for Amici Curiae



 

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