about the plaintiffs' religious beliefs, defendants have submitted documents which indicate that upon their entry into the prison system, plaintiffs Campos and Lance identified themselves as, respectively, "Catholic" and "Christian."
Defendants' attempt to cast doubt upon plaintiffs' religious beliefs is not persuasive. There is nothing in the record to suggest that plaintiffs, although devout Santeria practitioners, do not also acknowledge certain aspects of Catholicism and Christianity, as do other practitioners of Santeria. Indeed, only last year, prior to the DOCS directive's effective date, the Supreme Court recognized that "Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, U.S. , 113 S. Ct. 2217, 2222, 124 L. Ed. 2d 472 (1993). At the Hearing, plaintiffs' counsel also noted that defendants' own expert, Raul Canizares, has written a book in which he indicates that Santeria adherents usually identify themselves as Catholics when asked their religious affiliation. Tr. 64. I further assume that defendants had access to their own prison personnel and records and that, if there was any evidence of gang affiliation or other factors to suggest that plaintiffs' alleged religious beliefs are insincere, defendants would have presented such evidence to the Court.
Finally, defendants have recently informed me that, at least at the individual facility level, plaintiffs are now accepted as adherents of the Santeria religion. See Defendants' Supplemental Memorandum, p. 3. Based on this information, and solely for purposes of the preliminary injunction motion, I accept that plaintiffs' asserted religious beliefs are sincere and that their challenge to the DOCS's directive is based on their desire to practice their religion free from undue constraints.
2. Santeria Practices and the Wearing of Beads
Santeria is a religious belief system with a long and rich history in the Caribbean and Latin America. It is an expression of what experts term a "syncretion," or fusion, of African religion and Roman Catholicism. Saints are fundamental figures in Santeria. They play the role of guide and patron to Santeria devotees. The saints in the Santeria religion, however, are different in character and status from the saints recognized and venerated in Catholicism. The Saints, or Orishas as they are known in Santeria, have distinct personalities and temperaments and Santeria practitioners have specific patron Orishas with whom they have a spiritually intimate affiliation. The saints and spirits, and the adherent's devotion to the Orishas, are central aspects of Santeria beliefs. See Church of the Lukumi Babalu Aye, 113 S. Ct. at 2222.
Devotion to the Orishas and commitment to Santeria is expressed, in part, by the follower's wearing of a necklace of colored beads, the practice at issue in this action. The beads are not mere symbols of some greater entity or a tool for veneration. According to plaintiffs' expert, the beads are "a focus of spiritual presence, as protection against misfortune, and as markers of spiritual identity." Affidavit of Joseph M. Murphy, P 9 ("Murphy Affidavit"). Significantly, Santeria adherents believe that if the practitioner wears these beads faithfully the beads ensure the practitioner's closeness to the Orishas, as well as protection from negative forces and events. Even a simple transgression from this practice, such as a temporary removal of the beads for some reason other than those recognized by adherents, or the blemishing of the beads as a result of their handling by someone other than the wearer, may lead to negative consequences for the practitioner.
The colors of the beads, and color combinations of bead strands, also carry great significance in the Santeria religion because different color beads correspond to particular Orishas and particular days of the week. When a practitioner recognizes a patron Orisha, that individual then wears that patron's colors on a bead necklace. In addition, the follower also wears the beads which correspond to the Orisha recognized on that particular day of the week. Consequently, a practitioner of Santeria may wear several strands of beads, in various colors, some worn daily and others worn on different days of the week.
Both Campos and Lance wish to wear, in direct contravention of Directive #4202, the beads which represent their patron Orisha, along with the bead necklace corresponding to a particular day's Orisha. Campos claims that he must wear black and white beads, the colors of his Orisha, Oya, all the time, and the beads corresponding to the Orisha for that weekday. So that on Monday, for example, he wears black and white beads, as well as the beads for the Orisha Eleggua, whose colors are red and black, and who is recognized on Monday. Plaintiff Lance claims that he must wear the white and red color beads for his Orisha, Chango, every day, in addition to his daily Orisha beads. See Plaintiffs' Memorandum of Law in Support of Preliminary Injunction, p. 9.
C. Plaintiffs' Claims
Plaintiffs challenge the DOCS directive, on its face and as applied, as a statutory and unconstitutional infringement on their free exercise of religion because the directive prohibits plaintiffs from wearing their Orisha beads. Specifically, plaintiffs allege that the directive violates the recently-enacted Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (Supp. 1994), their right to freedom of expression protected under the First and Fourteenth Amendments and their Fourteenth Amendment equal protection and due process rights.
Plaintiffs also charge that the two-step approval process established by defendants for purposes of granting permission to an inmate to possess beads is unduly burdensome, unnecessarily lengthy and cumbersome. Plaintiffs' more compelling challenge, however, alleges that the process is fundamentally ineffective because it fails to provide plaintiffs with a real remedy: approval to wear beads. Plaintiffs claim that so long as defendants refuse to modify the directive to permit the wearing of beads, the approval mechanism does not address their religious needs.
Defendants claim that the directive is a proper means to address prison gang violence and does not violate plaintiffs' constitutional rights because it does not impose a significant burden on plaintiffs' free exercise of religion. Defendants argue that once plaintiffs establish, through the approval process, the sincerity of their religious beliefs and the genuine nature of their request to use beads solely for religious purposes, that plaintiffs will be allowed to possess the beads. Since, according to the defendants, Santeria tenets are satisfied by the mere possession, without wearing, of beads, plaintiffs are not significantly burdened by the DOCS's possession restriction. Defendants refused plaintiffs' compromise proposal, maintaining that wearing beads under clothing would still undermine penological security objectives. Defendants argue that the Court should defer to DOCS's judgment of the proper balance between DOCS's institutional needs and plaintiffs' individual rights.
I do not approach this matter with a blank slate. Neither I, nor defendants, are without benefit of some discussion of Santeria and the recognition of its protected status within constitutional moorings. Last year, the practices of Santeria were considered and accorded First Amendment protection, by the Supreme Court in Church of the Lukumi Babalu Aye. In addition, as the parties and their experts recognize, Santeria has been the subject of much literature and academic discourse. See e.g., Migene Gonzalez-Wippler, Power of the Orishas: Santeria and the Worship of Saints 5 (1992); M. Gonzalez-Wippler, Santeria: African Magic in Latin America (2d ed. 1992); Raul Canizares, Walking with the Night: The Afro-Cuban World of Santeria (Rochester, Vt.: Destiny Books 1992); 13 The Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds. 1988).
The Supreme Court in Church of the Lukumi admonished legislators that in their zeal to regulate conduct they must be ever mindful of the First Amendment's requirements:
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.
113 S. Ct. at 2234.
With these principles and the Supreme Court's warning in mind, I now consider the instant motion.
II. The Motion for Preliminary Injunction
A preliminary injunction may issue only where the movant has shown "(1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Blum v. Schlegel, No. 811, Docket 93-7689, 1994 WL 67166 at *4 (2d Cir. March 4, 1994) (quoting Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)).
Ordinarily, violations of First Amendment rights are recognized as constituting an irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547 (1976); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991). Plaintiffs have succinctly set forth sufficient allegations of a violation of their First Amendment rights to the free exercise of their religion to satisfy this first requirement for a preliminary injunction.
Moreover, the balance of hardships tilts decidedly in the plaintiffs' favor. Plaintiffs claim that they have no other way of practicing their religious beliefs other than by the very act which defendants forbid: the wearing of their beads. In contrast, and as is more fully discussed below, defendants have an alternative means to further their goal of institutional security and control, which would not significantly burden plaintiffs' right to religious expression. They can simply permit plaintiffs to wear their beads under their clothing.
The central question remaining, then, is whether plaintiffs have shown a likelihood of success on the merits or a sufficiently serious question going to the merits justifying the issuance of injunctive relief. For the reasons discussed below, I conclude that the plaintiffs have carried their burden on this second requirement for preliminary injunctive relief.
III. The Religious Freedom Restoration Act
Plaintiffs challenge the DOCS directive under the Religious Freedom Restoration Act of 1993 ("the Act").
The Act is of historical and legal significance because it reinstates the "compelling state interest" standard applicable to free exercise of religion claims previously eviscerated by the Supreme Court's decision in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).
The Act is also notable for its application of the compelling governmental interest test to inmates' cases which, prior to the passage of the Act, were subject to a less onerous standard of review, favoring prison administrators so long as the prison regulation was reasonably related to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64 (1987) (prison regulation must be "reasonably related to legitimate penological interests."); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282 (1987) (prison regulations must satisfy the less restrictive reasonableness test).
Two other federal courts which have addressed the issue of whether the Act applies to inmates' free exercise of religion claims have concluded that the Act controls the standard to be applied to those cases. See Allah v. Menei, 844 F. Supp. 1056, No. CIV. A. 93-4958, 1994 WL 58360, at *3-4, & n.18 (E.D. Pa. Feb. 23, 1994); Lawson v. Dugger, 844 F. Supp. 1538, No. 83-8409- CIV., 1994 WL 57930, at *4 (S.D. Fla. Feb. 16, 1994).
I agree with these courts. The plain language of the statute makes it clear that it applies to all state laws and regulations without exception. The Act, in relevant part, states:
SEC. 3 FREE EXERCISE OF RELIGION PROTECTED