The opinion of the court was delivered by: LOUIS H. POLLAK
In the June 30 memorandum, the court found that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1 -the law passed by Congress to reestablish the "compelling interest" test that had guided the Supreme Court's free exercise jurisprudence prior to Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) -- provides the proper standard for addressing this claim. RFRA provides:
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person --
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000bb-1(b). Under RFRA, a plaintiff must first establish that the government has substantially burdened the free exercise of religion; if the plaintiff satisfies this threshold, the government must establish that its conduct is the least restrictive means of serving a compelling governmental interest. In this court's June 30 memorandum, I concluded that genuine issues of material fact remained as to both plaintiff's and defendants' burdens under RFRA. Specifically, the issues that remain for trial are whether the plaintiff is motivated by a sincerely held religious belief and whether the no-hats rule is the least restrictive means of furthering the government's compelling interest in prison safety.
Defendants have asked the court to reconsider the denial of summary judgment. Defendants make three arguments: that RFRA does not apply to this case; that, even if RFRA does apply, the court misapplied it; and that the defendants are entitled to qualified immunity. I will address these arguments in turn.
Defendants argue that RFRA should not apply in this case because the plaintiff did not frame his complaint or his response to the summary judgment motion in terms of RFRA. In support of this argument, defendants cite Brown-El v. Harris, 26 F.3d 68 (8th Cir. 1994). In that case, the Eighth Circuit apparently concluded that the pre-RFRA standard should govern. The court stated:
We recognize that Congress, in passing the Religious Freedom Restoration Act of 1993 has created a new standard of review for claims that governmental action restricts the free exercise of religion. Although the Act applies retroactively, we need not consider the new standard because Brown-El failed to raise or otherwise bring his claim under the Act, and in any event, we conclude the [defendant's] policy does not restrict Brown-El's religious freedom in the first place.
Id. at 69 (citations omitted). I do not read this case as standing for the proposition that RFRA applies only when raised by the parties. The remainder of the opinion addresses whether the governmental conduct burdened the plaintiff's free exercise; thus, it appears that the central basis for the decision was that the plaintiff had not established a burden on his free exercise. To the extent that Brown-El suggests that a court cannot apply RFRA without being asked, I disagree. RFRA is the law regardless of whether parties mention it. RFRA itself states that its purposes are "to restore the compelling interest test" and to "guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1) (emphasis added). Moreover, applying RFRA in this case does not unfairly prejudice ...