Kerry Devin O’b Ryan v. Bureau of Prisons

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4012
K ERRY D EVIN O’B RYAN ,
Plaintiff-Appellant,
v.
B UREAU OF P RISONS , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-CV-0016-MJR—Michael J. Reagan, Judge.
____________
S UBMITTED O CTOBER 20, 2003—D ECIDED N OVEMBER 10, 2003
____________
Before BAUER, EASTERBROOK , and D IANE P. W OOD , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Wicca is a polytheistic faith
based on beliefs that prevailed in both the Old World and
the New World before Christianity. See Phyllis W. Curlott,
Wicca and Nature Spirituality, in Sourcebook of the World’s
Religions 113 (3d ed. 2000; Joel Beversluis, editor). Its
practices include the use of herbal magic and benign
witchcraft. Kerry O’Bryan, a federal prisoner, wants to
follow Wiccan practices but has been prevented from doing
so by the Bureau of Prisons, which forbids “casting of
spells/curses”. See Policy Statement 5360.08. In this suit
under the federal-question jurisdiction, O’Bryan seeks an
injunction that would require the prison to permit him to

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2 No. 02-4012
conduct activities appropriate to his faith. He relies princi-
pally on the Religious Freedom Restoration Act ( RFRA ),
which provides:
(a) Government shall not substantially burden a
person’s exercise of religion even if the burden re-
sults from a rule of general applicability, except as
provided in subsection (b) of this section.
(b) Government may substantially burden a per-
son’s exercise of religion only if it demonstrates that
application of the burden to the person—
(1) is in furtherance of a compelling govern-
mental interest; and
(2) is the least restrictive means of further-
ing that compelling governmental interest.
42 U.S.C. §2000bb-1. The district court dismissed the suit,
remarking that Boerne v. Flores, 521 U.S. 507 (1997), had
held the RFRA to be unconstitutional.
That is not a correct statement of Boerne’s holding. The
Court did not say that the RFRA violates any substantive
limitation. It held, rather, that the RFRA could not be
deemed an exercise of the power granted by §5 of the
fourteenth amendment to “enforce” that amendment’s other
provisions. According to Employment Division v. Smith, 494
U.S. 872 (1990), the first amendment, applied to the states
by §1 of the fourteenth, does not require government to
accommodate religious beliefs adversely affected by laws
and practices that are neutral with respect to matters of
faith. Boerne declined to overrule Smith; it followed that the
RFRA , which requires accommodation rather than neu-
trality, does not “enforce” the first amendment. The parties
to Boerne did not offer any other source of authority to
apply the RFRA to state and local governments. But legisla-
tion affecting the internal operations of the national gov-
ernment does not depend on §5; it rests securely on Art. I §8

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No. 02-4012 3
cl. 18, which authorizes Congress “to make all Laws which
shall be necessary and proper for carrying into Execution .
. . all other Powers vested by this Constitution in the
Government of the United States, or in any Department or
Officer thereof.” This permits Congress to determine how
the national government will conduct its own affairs. No
one doubts that the Bureau of Prisons itself could choose to
accommodate religious practices. By and large, what the
Executive Branch may elect, the Legislative Branch may
require. (It would not be tenable to argue that prison
management is a subject constitutionally committed to the
President to the exclusion of the Congress.)
Every appellate court that has squarely addressed the
question has held that the RFRA governs the activities of
federal officers and agencies. See Guam v. Guerrero, 290
F.3d 1210, 1221 (9 th Cir. 2002); Henderson v. Kennedy, 265
F.3d 1072, 1073 (D.C. Cir. 2001); Kikumura v. Hurley, 242
F.3d 950, 958 (10 th Cir. 2001); Christians v. Crystal Evan-
gelical Free Church, 141 F.3d 854, 856 (8 th Cir. 1998).
Although Justice Stevens believes that accommodation of
religious practices offends the establishment clause of the
first amendment, see Boerne, 521 U.S. at 536-37 (concurring
opinion), a view as applicable to federal agencies as it is to
states, none of the other Justices has questioned the
constitutionality of statutory accommodation requirements
that rest on provisions other than §5 of the fourteenth
amendment. We have in the past left open the question
whether the RFRA may be applied to the internal operations
of the national government. See United States v. Israel, 317
F.3d 768, 770 (7 th Cir. 2003). Today we join the other
circuits and hold that it may be so applied.
Defendants concede that Wicca is a religion for purposes
of the RFRA . Although the district court did not evaluate
O’Bryan’s contentions (or his religious practices) under the
RFRA , defendants contend that we need not remand for that

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4 No. 02-4012
purpose because it is “self-evident why PS 5360.08 states
that casting spells is never authorized. If an inmate were to
cast a spell on another inmate, for example, and the other
inmate were to find out about it, a fight or other serious
disruption could easily occur.” This is not as self-evident as
the Bureau of Prisons may believe; relying on other in-
mates’ reactions to a religious practice is a form of hecklers’
veto. The RFRA does not allow governments to defeat claims
so easily. A governmental body that imposes a “substantial”
burden on a religious practice must demonstrate, and not
just assert, that the rule at issue is the least restrictive
means of achieving a compelling governmental interest. We
cannot tell whether a limit on casting spells would “substan-
tially” burden O’Bryan’s religious activities, nor can we tell
on this empty record whether “spells” cast by Wiccans
would cause problems. Wicca follows the principle that
adherents must not harm others, which implies that they
cast no curses or hex-like incantations “on” others that
might frighten or offend them. Thus it is premature to
apply the RFRA ’s standard to O’Bryan’s claims; that is a task
for the district court in the first instance, and on a suitable
record.
V ACATED AND R EMANDED .
B AUER , Circuit Judge, concurring. I concur.
I do not think that any member of this panel endorses,
even by implication, “casting of spells/curses” in any setting,
including a prison. Nevertheless, the opinion correctly
requires a judicial inquiry into what might be reasonable
restrictions. The recent report released by the Human
Rights Watch states that the prisons contain 300,000

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No. 02-4012 5
prisoners who are mentally ill—more than the total popula-
tion of mental institutions in the United States. That the
mental stability of law breakers is fragile at best comes as
no surprise. The effect of being forced to live with those who
purport to deal in casting spells and calling down curses on
such an unstable population might be subject for real
consideration in formulating a prison regulation. I would
recommend that such facts and figures together with
professional insights be part of the record. (I recommend,
not demand.)
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-10-03

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