Two government concessions lead to inmate appellate victory

It occurs to me that inmates win almost as many appeals in the Second Circuit as employment discrimination plaintiffs. In this case, a guy locked up in the Big House sues the state for religious discrimination. He wins the appeal.

The case is Smith v. Perlman, a summary order decided on August 3. He sues under two provisions: the Equal Protection Clause and the Religious Land Use and Institutionalized Persons Act, known as RLUIPA. The state allows religious inmates to celebrate certain religious holidays with family and friends. These are "family event days." Under the rules, each religious group gets one family event day. But Native Americans get nine family event days. Hence, the lawsuit.

The constitutional and RLUIPA claims each challenge the unequal family event day policy. The district court dismissed the equal protection claim without addressing the RLUIPA claim, which analyzes religious discrimination claims under a different and more plaintiff-friendly legal standard. (RLUIPA was a congressional response to the Supreme Court's pro-government religious discrimination claims under the Equal Protection Clause). The state concedes that the district court did not address the RLUIPA claim, so that claim heads back to the Northern District of New York to take up that issue in the first instance.

On the equal protection claim, the government won the summary judgment motion because the state said "the Native American religious group was singular in its need for family participation in multiple religious holidays, while other religious do not strictly require family participation as part of religious observance and thus would not be limited in such observance by the reduction to a family event day." But here, too, the government concedes on appeal that the state is now allowed to make religious judgments like this in setting policy. That's two concessions from the state in the same appeal. That's like seeing two triple plays in the same baseball game.

Another possible error in the district court's analysis is addressed in this ruling. The trial court said plaintiff did not show he was treated unequally by the policy or that the policy was motivated by intentional discrimination. The Court of Appeals (Livingston, Carney and Stanceu [D.J.]) is not sure about this.

We are not so certain that where, as here, the state expressly classifies inmates on the basis of religion in the prison context, a plaintiff challenging the state’s express classification on Equal Protection grounds must show either (1) that she was treated differently than members of a similarly situated group, or (2) that the state’s express classification was the result of intentional discrimination. Further, it appears that we have previously considered religious Equal Protection challenges (to both express religious classifications and policies generally applicable to all religious groups) in the prison context without requiring plaintiffs to show that they were treated differently than members of a similarly situated group, or that the state’s policy was the result of intentional discrimination.

Rather than untangle these issues, the Court of Appeals sends them back to the district court for further review.