Divining a Definition: ‘Substantial Burden’ in the Penal Context Under a Post-Holt RLUIPA

Abstract

This Note attempts to resolve a significant impediment to the religious free exercise of prisoners. The Religious Land Use and Institutionalized Persons Act (RLUIPA) forbids the government from placing a “substantial burden” on a prisoner’s religious exercise. Congress did not define substantial burden in the statute, instead indicating that courts should rely on the Supreme Court’s free exercise jurisprudence for a definition.

Despite congressional advisement, differing methods of statutory interpretation led to a circuit split over the term’s definition. One “plain-meaning” group of circuits defined substantial burden textually, while a second “jurisprudential” group defined it as intended through existing free exercise precedent. In 2015, the Supreme Court exacerbated the split in Holt v. Hobbs. In dicta, the Court wrote that a substantial burden requires an inmate “to engage in conduct that seriously violates [their] religious beliefs.” The plain-meaning circuits adopted this language as a standalone definition, but the jurisprudential circuits held fast to their previous definition.

The difference between the two definitions is significant for religious inmates. Under the Holt definition, plain-meaning courts employ a “conduct-focused” analysis for their substantial burden inquiry: Inmates must show that they were forced to “engage in conduct” that seriously violates their beliefs. By contrast, jurisprudential courts maintain a “pressure-focused” analysis, which considers government pressure applied onto the inmate as the harm, rather than the inmate’s resulting conduct.

This Note argues that the conduct-focused approach is inappropriate in the penal context. It calls on the Supreme Court to resolve the circuit divide and to further reconcile inherent differences between RLUIPA’s penal and economic contexts. As a remedy, this Note suggests a penal-specific definition of substantial burden that applies a pressure-focused style of analysis, similar to the Supreme Court’s early Sherbert–Thomas framework.

Keywords: Substantial burden, RLUIPA, pressure, conduct, Holt, Holt v. Hobbs, jurisprudential, plain-meaning, prison, prisoner, penal context, Religious Land Use and Institutionalized Persons Act, engage in conduct that seriously violates their religious beliefs