On August 28, 2024, Sidley scored a sweeping appellate victory before the United States Court of Appeals for the Third Circuit. See Fernando Nunez, Jr. v. Tom W. Wolf, et al., No. 22-3076 (3d Cir. Aug. 27, 2024). In the district court, Mr. Nunez brought a suit claiming that the Pennsylvania Department of Corrections violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, by denying him three religious accommodations, including the right to engage in congregate prayer with visitors. The lower court ultimately granted summary judgment to the Pennsylvania DOC on each of Mr. Nunez’s claims. In a published opinion, the Third Circuit panel unanimously held that the district court had failed to hold the DOC to its burden under RLUIPA and vacated the judgment below.
In its decision, the court held that strict scrutiny applies to RLUIPA claims, and that the government’s “heavy burden” under this test cannot be satisfied by “supposition,” “conclusory statements,” “speculation,” or “the government’s mere say-so.” Rather, RLUIPA demands that the government “prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate.” “Imagination,” in other words, “cannot stand in for data.” At bottom, the court reasoned, RLUIPA mandates an individualized inquiry—the prison has the burden to show that the denial of an accommodation for Nunez advances a compelling interest and is the least restrictive means “with regard to Nunez.”
So too, the court held that the government cannot establish that its chosen policy satisfies strict scrutiny unless it “proactively” identifies and rebuts “less restrictive policy alternatives.” On this score, “if the prison accommodates secular activities that implicate its allegedly ‘compelling interest,’ it must explain why the same flexibility extended to others cannot be extended to” the claimant. Against this backdrop, the court emphatically concluded that “the DOC has not even attempted to put forward actual evidence” that denying Nunez’s requests furthers a compelling interest, or that there are no less restrictive means available, and therefore failed to satisfy either prong of strict scrutiny.
This decision is the latest victory in Sidley’s longstanding pro bono representations in support of religious exercise and religious freedom with the Yale Law School’s Free Exercise Clinic. Through the clinic, students work with experienced litigators from Sidley’s First Amendment, Regulatory Litigation, and Supreme Court, Appellate, and Litigation Strategies groups, to represent clients in the United States Supreme Court and courts across the country in cases involving the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act, RLUIPA, and analogous state constitutional provisions and laws.
The Sidley litigation team included Gordon Todd, Ellen Crisham Pellegrini, Dino LaVerghetta, and Cody Reaves (Washington, D.C.); Rebecca Brooks (D.C. alum) and Aaron King (Houston alum). Dino LaVerghetta argued the case before the Third Circuit.
