People For the American Way

Don’t Believe the Hype: Gorsuch’s Yellowbear Case Reveals Nothing

News and Analysis

The Judiciary Committee questionnaire given to all judicial nominees asks them to list their ten most significant cases. President Trump’s Supreme Court nominee Neil Gorsuch included in his list a 2014 religious liberty case called Yellowbear v. Lampert, which involves the religious rights of a Native American in prison.

Bizarrely, the nominee’s supporters are trumpeting this as a case showing Gorsuch to be fair and open-minded.  As reported in the Washington Times:

“[Gorsuch] is someone who could look past the fact that this is not a savory character whose religious freedom he’s protecting. This is not someone who practices a religion that Judge Gorsuch himself belongs to or believes in,” said Carrie Severino, chief counsel for the conservative Judicial Crisis Network, which is backing the judge’s confirmation bid.

Looking past a party’s character and religion are among the most basic of basic requirements for a judge.  A Supreme Court nominee should get no special credit for it in a particular case.  Any judge engaged in such transparent and obvious malevolence would rightly be condemned.  But Judge Gorsuch ruled correctly in a case that really could not have turned out any other way at the circuit level.

Here’s what happened in the case. Judge Gorsuch wrote for a unanimous three-judge panel in support of a state prisoner, Andrew Yellowbear, suing under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Yellowbear had sued because the prison completely barred him from ever using its sweat lodge, which is a ritual in his Northern Arapaho faith.  The reason the prison has a sweat lodge in the first place is because other inmates use it as part of their religious exercise.  But not Yellowbear.  The question for the panel was whether Yellowbear had enough of a case that it should go to trial.

Under RLUIPA, once a plaintiff presents evidence that the government has imposed a substantial burden on his religious exercise, the government must demonstrate that its actions serve a “compelling state interest” and that the burden on religious exercise is the least restrictive means of achieving that interest.  Before the Yellowbear case, the Supreme Court had noted its expectation that courts would pay “due deference” to prison administrators’ experience and expertise on issues such as security, which courts generally lack expertise in.  But nowhere did the Court suggest “due deference” meant “accepting their word for it without any evidence.”

And since the penal officials presented little evidence to support their assertions, it was no surprise that the panel ruled unanimously that the Department of Corrections had not met its burden under RLUIPA.  Among the compelling interests claimed by the prison officials were:

  • Claim: Sweat lodges are inherently unsafe in a prison environment or too expensive to make safe.
    • Problem: The prison already had a sweat lodge that worked fine.
  • Claim: Since Yellowbear was in a protective custody unit (to protect him from other inmates), the prison would have to do a partial lockdown to take him to the sweat lodge, and taking him would have burdensome cost and administrative implications.
    • Problem 1: The Department of Corrections simply made the assertions, without providing any supporting information on what the costs might actually be.
    • Problem 2: The prison already has daily and sometimes hourly lockdowns to transport certain prisoners to or from special sections like the medical unit or the geriatric unit.  The state did not give a reason why they couldn’t do a lockdown to transport Yellowbear to exercise his religion when they already do frequent lockdowns for other purposes.
  • Claim: Granting Yellowbear’s request would open the floodgates to other such requests from specially-housed inmates like him.
    • Problem 1: The prison provided no evidence this would happen.
    • Problem 2: The prison provided no evidence that it could not handle such a situation.

Other claims made by the state were similarly unsupported or contradicted by the existing situation at the prison.

This was not a difficult case, one that was made even easier by the fact that a ruling for Yellowbear would have no impact whatsoever on anyone else’s rights.  So it is no surprise that judges nominated by three different presidents (Reagan, Bush-43, and Obama) were in agreement.

The Supreme Court confirmed this rather obvious reading of the law in 2015’s Holt v. Hobbs. In that case, a unanimous Court ruled in favor of a Muslim prisoner’s claim that prohibiting him from growing a half-inch beard violated his rights under RLUIPA.  As in Yellowbear, the prison’s explanations fell apart with minimal scrutiny.  And as the trial court in Yellowbear had done, the lower court in Holt had deferred so much to the state as to render RLUIPA essentially meaningless.  So, in a surprise to no one, the unanimous Supreme Court ruled for the Muslim inmate, stating:

Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the [prison’s] argument …

Yellowbear was a straightforward case that Gorsuch ruled correctly on.  He and his colleagues were smart enough to know that “due deference” doesn’t mean “blind acceptance.”  The opinion could not have turned out any other way.  In fact, as he pointed out in his questionnaire, Justice Sotomayor cited his opinion in her Holt v. Hobbs concurrence.

Judge Gorsuch’s record has raised serious concerns about his tendency to rule for corporations and the wealthy and against “regular folks.”  Those concerns remain, with or without Yellowbear.


Carrie Severino, Judicial Crisis Network, Neil Gorsuch, Protecting the Supreme Court, Stop Gorsuch, Supreme Court, Supreme Court nominations