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Love V Reed
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 99-3149
__________
Kelvin Ray Love, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas
*
M.D. Reed, G. David Guntharp, and *
Bruce Collins, *
*
Appellants. *
__________
Submitted: April 14, 2000
Filed: July 5, 2000
__________
Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and FRANK,1 District
Judge.
FRANK, District Judge.
2
According to the Amended Complaint, Joint Appendix at 11, M.D. Reed isthe
Warden of Cummins Unit of the ADC, Bruce Collins is the Assistant Wardenof
Operations for Cummins Unit, and David Guntharp is a Deputy Director ofADC.
3
The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, who presided over the case pursuant to theconsent of
the parties. See 28 U.S.C. § 636(c).
4
The record indicates that Love has tried on several occasions to changehis
official religious designation, but he has been unable to do so because of avariety of
procedural problems, such as his failure to use the proper forms or to havehis request
notarized. In addition, the Administrator of Religious Services for the ADCtestified
that he could not find “Hebrew religion” on any list ofrecognized religions. He
further testified that, if Love would request it, he would arrange a meetingbetween
a Rabbi and Love to ascertain whether Love’s belief system could berelabeled in
such a way that it would correspond with the list of recognizedreligions–a suggestion
which Love has indicated he would “embrace” and“appreciate.” J.A. at 183.
-2-
Appellants, all agents of the Arkansas Department of Corrections,2 appealfrom
the district court’s3 ruling that appellants violated appellee’sFirst Amendment right
to free exercise of religion by failing to provide him with food in his cellon his
Sabbath. We affirm.
I.
Appellee Kelvin Ray Love (“Love”) is an inmate in the ArkansasDepartment
of Corrections (“ADC”). When he was incarcerated in 1982, Loveidentified his
religion as “Catholic.” During the course of his incarceration,however, Love’s
religious beliefs have changed.
Now, Love is a self-proclaimed adherent of the “Hebrewreligion”4; although
Love does not necessarily consider himself at this point to beJewish–indeed, he does
not formally ascribe to any organized religion–he is a student of theOld Testament
5
Love cites Exodus 16:23 (“And he said unto them, This is that whichthe Lord
hath said, Tomorrow is the rest of the holy sabbath unto the Lord: bake thatwhich ye
will bake today, and boil that ye will boil; and that which remaineth overlay up for
(continued...)
-3-
of the Christian Bible, and his religious beliefs derive from his owninterpretation of
that text. Love explained his situation during a hearing before the districtcourt:
Q: You use a text that others use?
A: Yes, sir.
Q: But you’ve given it – you have a [sic] interpretation that isnot a
tenet of other religions; is that what –
A: Due to the fact that I don’t have anybody to teach me the true
doctrines. I’m – I’m learning on my own so I have to learnprecept by
precept.
And really, I’m trying to practice the old Hebrew religion andI’m
going by the King James Version which has been translated and re-
translated and misinterpreted . . . .
Joint Appendix (hereinafter “J.A.”) at 50. In short, Love hasindicated his desire to
return to first principles, religiously speaking, by studying the OldTestament. He is
skeptical of Christian interpretations of this text–indeed, he isskeptical of Christian
translations of this text, but has been unable to obtain a HebrewBible–and has had
no opportunity to study or discuss the text with adherents to any Jewishsects. While
Love has corresponded with the Jewish Prisoners Service International aboutissues
such as Kosher standards, he has no source of regular religious instructionon
Judaism. As a result, Love has endeavored to interpret the plain language ofthe Old
Testament himself.
From his study of the Old Testament, Love has concluded, among otherthings,
that it is wrong to leave his residence or to work on the Sabbath,5 a periodwhich he
5
(...continued)
you to be kept until the morning.”) and Exodus 16:29 (“See, theLord hath given you
the sabbath; therefore he giveth you on the sixth day the bread of two days.Abide
every man in his place, let no man go out on the seventh day.”).Because Love has
testified that he studies the King James Version of the Old Testament, wehave used
that version for our references.
6
Love cites Exodus 20:10 (“But the seventh day is the sabbath of theLord thy
God; in it thou shalt not do any work, thou, nor they son, nor thy daughter,thy
manservant, nor thy maidservant, nor thy cattle, nor thy stranger that iswithin thy
gates . . . .”). Both Love and some of the prison guards testifiedthat Love does not
solicit any labor from anyone on the day he recognizes as the Sabbath; oneguard
admitted that Love will not even ask a guard to turn off a light for him asthat would
interfere with the guard’s “rest.”
7
Appellants have indicated that Love is free to purchase pre-packaged foodin
the commissary for consumption on the Sabbath. However, the district courtfound
that Love is indigent and does not always have money to purchase suchluxuries. As
Love himself put it, the food is there to be purchased but “it’sjust like rain is in the
clouds . . . .” J.A. at 64.
-4-
considers to run from sundown on Saturday to sundown on Sunday. Love’sbelief
about resting on the Sabbath extends to a belief that he should not benefitfrom work
others perform on the Sabbath.6 As a result, the district court found thatLove
believes that he “is neither permitted to eat food prepared by otherson the Sabbath,
nor to have others serve him through their work on the Sabbath.” J.A.at 236. To
accommodate these beliefs, Love requested in late 1995 that the ADC providehim
with peanut butter and bread in his cell on Saturday so that he mightprepare
sandwiches to consume in his cell on the Sabbath.7 The ADC has allowed Loveto
forego cafeteria meals on his Sabbath. However, citing concerns aboutcell
cleanliness and existing contraband rules, the ADC declined to provide Lovewith
food from the prison kitchen for his Sabbath meals.
-5-
Love filed an action in district court pursuant to 42 U.S.C. § 1983,alleging
violation of his right to free exercise of religion as guaranteed in theFirst Amendment
to the United States Constitution. Following a trial, the district courtconcluded that
the ADC’s refusal to accommodate Love by providing him with sandwichmakings
on Saturday did constitute a violation of Love’s constitutionalrights.
The prison officials now appeal, alleging: (1) that Love’s beliefsystem is not
a “religion” so as to be protected by the First Amendment; (2)that, even if the Court
finds Love’s beliefs to constitute a religion, the ADC’s rulesdo not impinge upon
Love’s free exercise of that religion; and (3) that, even if the Courtfinds that the
ADC’s policies impinge upon Love’s free exercise of religion,those policies are
reasonably related to a legitimate penological interest and therefore shouldbe
sustained.
We review the district court’s factual findings under the“clearly erroneous”
standard; the district court’s legal conclusions are reviewed de novo.See Paramount
Pictures Corp. v. Metro Program Network, Inc., 962 F.2d 775, 777 (8th Cir.1992).
We affirm the district court and find that the ADC’s policies doconstitute an
infringement of Love’s constitutional rights.
II.
We first consider whether the district court erred in finding thatLove’s beliefs
constitute a sincerely held religious belief protected by the FirstAmendment. “The
appellants do not doubt that appellee’s beliefs are sincere, but onlythat his belief
system as described in the record should not be considered areligion.” Appellants’
Brief at viii.
First Amendment protection only attaches to beliefs rooted in religion,as
opposed to purely secular beliefs or personal preferences. See Thomas v.Review
-6-
Board of the Indiana Employment Security Division, 450 U.S. 707, 713 (1981);Ochs
v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996). “The determination ofwhat is a
‘religious’ belief or practice is more often than not adifficult and delicate task . . . .
However, the resolution of that question is not to turn upon a judicialperception of
the particular belief or practice in question; religious beliefs need not beacceptable,
logical, consistent, or comprehensible to others in order to merit FirstAmendment
protection.” Thomas, 450 U.S. at 714.
The ADC cites Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3rd
Cir. 1981), as defining three “useful indicia” of a religion forthe purposes of First
Amendment jurisprudence:
First, a religion addresses fundamental and ultimate questions having to
do with deep and imponderable matters. Second, a religion is
comprehensive in nature; it consists of a belief-system as opposed to an
isolated teaching. Third, a religion often can be recognized by the
presence of certain formal and external signs.
662 F.2d 1025, 1032. Using these indicia as a benchmark, the ADC assertsthat
Love’s belief system does not constitute a religion.
First, we note that, while the Third Circuit emphasized the importance of
setting some objective guidelines, they also conceded that they did notintend to
articulate a rigid “test” for defining a religion and that“‘[f]lexibility and careful
consideration of each belief system are needed.’” Africa, 662F.2d at 1032 n.13
(quoting Malnak v. Yogi, 592 F.2d 197, 207-210 (3rd Cir. 1979)(concurring
opinion)). Yet even applying the Africa standards as a “test,”we find that Love’s
belief system is a religion.
8
Indeed, Love strongly identifies with the Jewish faith. When askedwhether
he considered himself to be “Hebrew” or “Jewish,”Love responded, “I don’t consider
there to be a difference between them.” J.A. at 206. He went on toexplain that he
“wanted to go back to the ‘A’ priority [sic] origin of thereligion and that is it. The
founder of the Jewish religion was a Hebrew.” J.A. at 206-207.
-7-
With respect to the first two prongs of this analysis, Love’s beliefsystem is
derived from his own study of a text which is central to two of theworld’s major
religions: Christianity and Judaism. When asked to articulate the tenets ofhis belief
system, Love confined his testimony to those tenets which affected thislawsuit; he
was asked only about those beliefs that had some bearing on the lawsuit.J.A. at 47-
48. However, he has clearly indicated that his religion is premised upona
fundamentalist approach to the Old Testament.8 To suggest that the OldTestament
of the Bible, standing alone as a religious text, fails to address“fundamental and
ultimate questions having to do with deep and imponderable matters,”or that it does
not provide a comprehensive “belief-system as opposed to an isolatedteaching”
would be to call into question the “religiousness” of two of themost prominent
religions in this country.
Love himself admits that his understanding of the tenets of hisbelief-system
are evolving. However, “[c]ourts should not undertake to dissectreligious beliefs
because the believer admits that he is ‘struggling’ with hisposition or because his
beliefs are not articulated with the clarity and precision that a moresophisticated
person might employ.” Thomas v. Review Board of the IndianaEmployment
Security Division, 450 U.S. 707, 715 (1981). Here, Love concedes his is notan
expert on the scriptures, even though he provided the district court withchapter and
verse supporting his Sabbath meal request. While he may not yet be able toplace
individual precepts in a broader philosophical context, the record indicatesthat he is
struggling in that direction–without the benefit of formalinstruction. It is not the
place of the courts to deny a man the right to his religion simply becausehe is still
struggling to assimilate the full scope of its doctrine. We would not denythat a Jew’s
-8-
desire to keep Kosher is rooted in religion even if he were not a Rabbinicalscholar
capable of explaining the more subtle spiritual aspects of Judaism;similarly, we will
not deny that Love’s desire to follow the express dietary laws of theOld Testament
is rooted in religion simply because he does not now attempt to draw morebroad
spiritual lessons from the text.
With respect to the third prong of the Africa analysis, the ADC suggeststhat
Love has demonstrated only two formal or external signs which might beanalogized
to other traditional religions: his practice of not eating meals prepared ordelivered
on the Sabbath and his practice of not leaving his dwelling on the Sabbath.Love has
not, they argue, offered evidence of “formal services, ceremonialfunctions, the
existence of clergy, structure and organization, efforts at propagation,observance of
holidays [or] other similar manifestations associated with the traditionalreligions.”
Appellants’ Brief at vii. We note, however, that Love is stillattempting, through
study and through correspondence with both the Jewish Prisoners Services
International and the Alief Institute, to determine where his own beliefsfit with
respect to Orthodox, Conservative, and Reform Judaism. Certainly, Judaismboasts
formal services, ceremonial functions, a clergy, and structure andorganization. Love
himself does strictly observe a weekly “holiday” by keeping theSabbath holy, and he
has indicated that he would engage in other ceremonial behavior (such asritual
cleansing) if the strictures of prison life did not prevent it.
In short, we conclude that the district court correctly found that“[w]hile [Love]
does not consider himself ‘Jewish,’ he does adhere to practicesand teachings which
are part of the Jewish faith.” J.A. at 239. His beliefs may not fitsquarely with the
orthodoxy of Judaism, in any of its forms, but “the guarantee of freeexercise is not
limited to beliefs which are shared by all of the members of a religioussect,” Thomas,
450 U.S. 715-716, and some allowance must be made for Love’s isolationfrom a
9
We note that members of the Jewish community might not consider Love to
be Jewish, as he was apparently raised as a Christian and he has undergoneno formal
conversion. However, “the question whether [Love’s] beliefs areentitled to Free
Exercise protection turns on whether they are ‘sincerely held,’not on the
‘ecclesiastical question’ whether he is in fact a Jew underJudaic law.” Jackson v.
Mann, 196 F.3d 316, 321 (2nd Cir. 1999).
-9-
source of formal instruction in Judaism.9 To suggest that Love’sbelief-system falls
short of being a religion would be to call into question the religiousstanding of all
those who infuse Judaism, Christianity, or other “traditional”religions with personal
interpretation and introspection. We are not inclined to do that.Accordingly, we find
that the district court correctly held that Love’s belief-system is a“religion” for
purposes of First Amendment protection.
The ADC further argues that, even if Love’s belief-system is religiousin
nature, his request regarding special meals on the Sabbath should not beconsidered
a “religious preference.” The ADC cites Ochs v. Thalacker, 90F.3d 293, 296 (8th Cir.
1996), for the proposition that we should be more cautious in ascribingreligious
significance to requests or preferences which involve purely secular aspectsof life,
including “the timing of meals.” However, this Court noted inWiggins v. Sargent,
753 F.2d 663, 666-667 (8th Cir. 1985), that “a belief can be bothsecular and religious.
The categories are not mutually exclusive. The first amendment presumablyprotects
the area where the two overlap.” Here, Love’s meal request issupported by direct
reference to a passage in his religious text. Again, it is difficult todistinguish
between Love’s Sabbath meal request and the Kosher laws of Judaism orthe
strictures the Islamic religion places on eating during daylight hoursduring Ramadan.
Not only is Love’s belief-system a “religion,” but hispreference for food not prepared
or served on the Sabbath is a religious preference which falls within theambit of the
First Amendment.
-10-
III.
Next we consider whether the ADC’s refusal to provide food from thefacility
kitchen to Love on Saturday for consumption on Sunday substantiallyburdens
Love’s ability to freely exercise his religion. The ADC argues that itdoes not.
Specifically, they note that Love is free to purchase food from thecommissary or to
fast on the Sabbath; the ADC does not force Love to violate his religiousconvictions
by eating food prepared or served on the Sabbath.
With respect to the ADC’s claim that Love can exercise his religion onthe
Sabbath by buying pre-packaged food in the commissary, the district courtfound that
Love is indigent and does not generally possess the funds to buy food. Thedistrict
court’s finding regarding Love’s indigency is not clearlyerroneous. Moreover, the
district court concluded that Love was obligated to spend any money he didobtain
for food from the commissary for observance of his Sabbath; however, to theextent
that Love does not, in a particular week, have money for purchasing foodfrom the
commissary, the ADC should provide him with food on Saturday. In otherwords, the
district court’s ruling requires Love to exhaust alternative means ofobserving the
Sabbath before seeking an accommodation from the ADC.
Finally, we reject the ADC’s apparent contention that Love’soption of fasting
on his Sabbath–as he has been doing–abrogates their obligationto accommodate his
religious dietary requirements. We agree with the Second Circuit’srecent
pronouncement that prison inmates are entitled to reasonable accommodationof their
religious dietary needs. Jackson v. Mann, 196 F.3d 316, 320 (2nd Cir. 1999).Giving
Love the option of fasting is not a reasonable accommodation of hisreligious dietary
needs. At a minimum, Love has indicated that fasting interferes with hisability to
appropriately celebrate his Sabbath. As he explains his religious beliefs,the Sabbath
is intended as a day of rest and refreshment; fasting is a practice reservedfor days of
mourning and atonement. An enforced fast on the Sabbath detracts from thejoy of
-11-
the day. J.A. at 189. The choice the ADC would offer Love, between fastingand
compromising his religious convictions, is really no choice at all.
We conclude, then, that Love has no consistent and dependable way of
exercising his right to observe his Sabbath without the requestedaccommodation by
the ADC. The ADC’s failure to provide the requested accommodation,then,
substantially burdens Love’s ability to freely exercise hisreligion.
IV.
Finally we turn to the issue of whether the ADC has shown a reasonable
relationship between the policy which impedes Love’s free exercise ofreligion and
some legitimate penological interest. “[W]hen a prison regulationimpinges on
inmates’ constitutional rights, the regulation is valid if it isreasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89(1987). In
determining whether a regulation is reasonable, courts should consider: (1)whether
there is a valid, rational connection between the regulation and theinterest asserted;
(2) whether alternative means of exercising the right remain open to theprisoner;
(3) the effect the requested accommodation will have on guards, otherinmates, and
the allocation of prison resources; and (4) whether there is somealternative which
will accommodate the prisoner’s needs with de minimis impact on theprison’s
asserted interests. Id. at 89-91.
The ADC has identified two legitimate penological interests which itpurports
to advance by prohibiting Love’s accommodation. First, the ADC arguesthat
“hoarding” of food from the kitchen would increase theprobability of spoilage,
thereby compromising the penological interest in maintaining a sanitaryfacility.
Second, the ADC argues that if they extend this “privilege” toLove, other inmates
will demand the same privilege, and the resulting discontent will compromisethe
10
The ADC distinguishes those situations from Love’s request by notingthat
the kitchen food brought to the cells is for immediate consumption. Giventhat Love
is requesting his food only a day in advance, the ADC appears to be drawingthe
proverbial distinction without a difference.
-12-
penological interests of security and order. We do not find thesearguments
persuasive.
The ADC has repeatedly stressed that Love is free to buy food in the
commissary for consumption at any time. The ADC argues that the foodavailable in
the commissary is less prone to spoilage than food which comes from thekitchen and
thus does not pose the same sort of health risk. To that end, counsel forthe ADC
pointed out that beef jerky bought in the commissary is less likely to spoilquickly
than a “hamburger steak” from the facility kitchen. J.A. at 184.While it is true that
some kitchen food spoils more quickly than some commissary food, theopposite is
also true: an open can of pork and beans or unwrapped microwavablesandwich
(from the commissary) would likely spoil more quickly than a loaf of breadand jar
of peanut butter (from the kitchen). Indeed, Love testified that loaves ofbread were
available from the commissary and thus could be purchased by prisoners,stored in
their cells, and consumed at their leisure. Love, himself, once purchasedpeanut
butter in the commissary. The type of food items Love has requested are nothighly
perishable items. Rather, they are food items which could be, and likelyare, stored
in the cells of inmates with the funds to buy them from the commissary. TheADC’s
argument, that providing these foods to Love a day in advance would createa
potential health risk, rings hollow.
We also note that the ADC already makes exceptions to its rule byproviding
certain prisoners–those in segregation or observing religiousholidays–with kitchen
food in their cells.10 It is certainly foreseeable that crumbs and bits ofthat food would
fall to the floor where it might spoil or attract bugs.
-13-
Certainly the ADC’s interest in health and sanitation is legitimate.But a
blanket prohibition on food from the facility kitchen is not reasonablyrelated to that
interest. If Love were requesting hamburgers, cartons of milk, or otherhighly
perishable items on Saturday for Sunday consumption, the ADC’s denialof his
request might be justified. However, Love has requested only peanut butterand
bread–items which are available in the commissary for other prisoners,with money,
to purchase and store in their cells. The accommodation Love has requestedposes
no more of a threat to the prison’s sanitation than do practices whichare already
common in the prison.
The ADC’s second asserted penological interest is similarlyunconvincing. The
ADC suggests that providing Love with bread and peanut butter on Saturday,for
consumption on Sunday, would open a floodgate of similar requests fromother
inmates. As the district court noted, it is “difficult to believe thatmost inmates would
go to great lengths to obtain the same treatment as plaintiff; that is, toremain in a cell
all day on Sunday with a couple of sandwiches to eat for a day, as opposedto leaving
the cell for three hot meals in the cafeteria.” J.A. at 241. Indeed,Appellant M.D.
Reed testified: “[I]nmates usually prefer hot meals, you know, over asandwich, in
most cases. . . . [I]t would cause problems if I delivered sack lunchesto
administrative seg [sic]. I would say that the large part of that populationwould not
be happy with it, and it would cause real problems.” J.A. at 126.
The real concern, Reed testified, is that, if the ADC accommodates Love,other
prisoners will request other accommodations of their dietary preferences.This
justification for denying Love’s accommodation is not persuasive. Thesame
argument could be made with respect to the ADC’s accommodation of theIslamic
prisoners fasting during Ramadan: the fact that these prisoners get foodbrought to
their cell after dark might prompt other inmates to want the same, orother,
consideration. But as with the case of the Islamic prisoners, the key factorhere is that
Love’s request is based upon his religious convictions. If otherprisoners request
-14-
dietary accommodations based upon sincerely held religious beliefs, then theADC
has an obligation to consider their requests. If other prisoners requestdietary
accommodations which are based merely upon personal preference, the ADC willbe
under no obligation to provide those accommodations.
In short, we agree with the district court’s holding that theADC’s refusal to
accommodate Love’s religious dietary needs is not reasonably relatedto a legitimate
penological interest.
Turning to the remaining considerations in the Turner analysis, we have
already discussed Love’s lack of available alternative means ofexercising his right
to abide by his religious convictions with respect to his Sabbath meals.Moreover,
we concur with the district court’s assessment that:
the impact of providing [Love] non-perishable food on Saturdays for his
consumption on Sundays is minimal. Special dietary trays are prepared
for inmates with other beliefs, and guards transport meals to inmates in
other areas of the unit on a daily basis. Finally, . . . the provision offood
to [Love] on Saturdays is an alternative [to the ADC’s generalpolicy]
which “fully accommodates the prisoner’s rights at de minimiscost to
valid penological interests.”
J.A. at 241-242 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir.1996)).
We conclude, then, that the ADC’s policy infringes upon Love’ssincerely held
religious beliefs and that it is not reasonably related to any validpenological interest.
Accordingly, the decision of the lower court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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