Memorandum about prisoner Rusty Doucet; formating the memorandum with Heading, Issue(s) Presented, Brief Answer(s), Statement of Facts, Discussion, and Conclusion.

Questions Regarding In re Garcia 1. A plaintiff bringing a RLUIPA claim has the initial burden of proof. What must the plaintiff prove for the suit to proceed? 2. If the plaintiff establishes their initial prima facie case, the burden then shifts to the defendant. What must the defendant prove to rebut the plaintiff's case? Tips for Religious Liberty Memorandum for California Prisoner Rusty Doucet 1. Be clear about the burdens of proof on both sides and in what order they're triggered. 2. Both the plaintiff's and defendant's cases involve multiple elements that have to be proven. Make sure your analysis stays focused on those elements. 3. If you decide to make factual comparisons between our case and Garcia, make sure to provide enough context about Garcia so that a reader who has never read that case can appreciate the comparison.security and discipline, consistent with consideration of costs and limited resources. [Citation.]" (Cutter, supra, 544 U.S. at pp. 722-723 161 L. Ed. 2d at p. 1035], fns. omitted.) In the present matter, respondent does not argue the rejection of petitioner's request to participate in the JKDP furthers a compelling governmental interest and is the least restrictive means of doing so, as required by RLUIPA. We are not surprised. On this record, we fail to see any legitimate governmental interest, let alone a compelling interest, in allowing traditional Jews to [*905] receive kosher meals but denying the same accommodation to Messianic Jews who sincerely hold similar beliefs concerning diet. Respondent points to evidence they have offered concerning the resources devoted to the kosher meal program, the difficulty in setting aside space and ensuring proper training and administration of the program, and security and custodial concerns. However, CDCR has determined that kosher meals can be provided in a cost-effective manner to Jewish inmates. Implicit in that determination is the judgment that providing kosher meals is not currently cost prohibitive. As for whether expanding the program to include petitioner would harm prison administration, respondent fails to make any showing of how many inmates, like petitioner, practice Messianic Judaism and wish to participate in the JKDP. The reference to a broad group of others in prison, in Maurino's declaration, is entirely inapposite, considering that respondent does not identify particular groups whose religious beliefs are tied to kosher rules. In the absence of such evidence, we cannot conclude either that the JKDP will be overwhelmed or that a limited extension to include petitioner would place a significant strain on prison resources. 133 Because respondent does not attempt to establish that excluding petitioner from participation in the JKDP furthers a compelling governmental interest in the least restrictive way, any concerns expressed in Cutter regarding prison security and limited resources have no bearing on this dispute. At oral argument, respondent asserted the denial of petitioner's request to participate in the JKDP did not interfere with the exercise of his religion because he is not a Jew, as defined by the rabbi at Mule Creek, i.e., is not a traditional Jew, and petitioner's dietary requirements can be met through a vegetarian diet. (9) The fact that petitioner is not a traditional Jew as determined by the local Jewish rabbi is an artificial construct that has no bearing on the issue presented. CDCR regulations for the JKDP limit participation to traditional Jewish inmates \"as determined by a Jewish Chaplain\" (Cal. Code Regs., tit. 15, 3054.2, subd. (a).) However, those regulations might just as readily have opened participation to all Jews or to all non-Christians or limited participation to Jews with red hair. RLUIPA prohibits imposition of a substantial burden on an inmate's religious exercise. (42 U.S.C. 2000cc-1(a).) \"Religious exercise\" includes \"any exercise of religion, whether or not compelled by, or central to, a system of religious belief\" (42 U.S.C. 2000cc-5(7).) The issue here is not whether petitioner is a Jew but whether his system of religious beliefs includes maintaining a kosher diet. In a declaration attached to the traverse submitted to the superior court, which is attached to the petition in this matter, petitioner asserted he [*906] considers Messianic Judaism to be his religion and \"[o] ne tenet of the Messianic Jewish faith pertains to diet, and while not all Messianic Jews keep kosher, | have embraced this tenet and sincerely wish to follow a kosher diet.\" As noted earlier, respondent has never challenged this assertion by petitioner or the sincerity of his claim that maintaining a kosher diet is a part of his system of religious beliefs. Respondent instead insists petitioner's religious needs can be met by a vegetarian diet. But petitioner has consistently stated that he wants to follow a kosher diet consistent with the Torah and his religious beliefs. Respondent's own evidence reflects the differences in preparation of kosher meals from nonkosher meals, indicating that neither the pork-free nor the vegetarian option is consistent with a traditional kosher diet. Kosher food must be indicating that neither the pork-free nor the vegetarian option is consistent with a traditional kosher diet. Kosher food must be prepared in a separate area with separate pans, utensils, dishes, and storage. In any event, the availability of an alternate diet was not the basis for petitioner's exclusion from the JKDP. Throughout the administrative process, respondent rejected petitioner's request and various administrative appeals solely because he is not a traditional Jew. Thus, the issue of whether petitioner's religious requirements can be met with a vegetarian diet was not litigated. On the record before us, there is no basis whatsoever to conclude petitioner's system of religious beliefs does not include maintaining a kosher diet and this can be satisfied with a vegetarian diet. We conclude respondent's denial of petitioner's request to participate in the JKDP violates petitioner's rights under RLUIPA. To the extent prison policy and regulations permit such action, they cannot stand. We emphasize, however, that our decision in 134 this regard is based on the procedural and factual posture of this matter. Respondent has made no attempt to challenge petitioner's assertions regarding his religious beliefs or his claim that maintaining a kosher diet is an integral part thereof. Respondent already has in place a kosher diet program and has not established a compelling interest in restricting that program to traditional Jews. Under these circumstances, petitioner's exclusion from the JKDP violates his rights under RLUIPA. Having so concluded, we need not and do not consider petitioner's constitutional challenges. DISPOSITION The petition for writ of habeas corpus is granted. The Department of Corrections and Rehabilitation is directed to permit petitioner to participate in its existing kosher meals program, as described in title 15, section 3054.2 of [907] the California Code of Regulations. In the event such program is not available at the institution in which petitioner is currently being held, and petitioner's CDCR classification otherwise permits it, the Department of Corrections and Rehabilitation is directed to transfer petitioner to an appropriate institution where a kosher meals program is available. Blease, Acting P.J., and Mauro, J., concurred. Learned Foot, LLP Memorandum To: Associates From: [Your Professor/Supervising Partner] Subject: Religious Liberty Memorandum for California Prisoner Rusty Doucet 124 Background: As part of Learned Foot, LLP's ongoing commitment to pro bono work, we have taken on the habeas corpus case of Rusty Doucet, a prisoner in the California State Prison of Los Angeles. Last month, Mr. Doucet filed a petition for writ of habeas corpus on his own behalf challenging the denial of his request to be transferred from his current windowless cell to any cell within the facility with a window. Doucet claims that his religion, called the Ark of Light, requires that he has access to natural light every day of his life. Mr. Doucet is serving the first of a three-year sentence for second-degree robbery. The conviction stemmed from an incident last fall when Mr. Doucet robbed the Loomis, CA Dairy Hut. Brandishing a pistol, he entered the Dairy Hut five minutes before its closing and demanded that the manager give him all the money in the cash register as well as \"all the burgers in the place, including the fixins" The manager complied, and approximately fifteen minutes later, Doucet left the Dairy Hut with two trash bags filled with approximately $1400, over twenty pounds of ground beef, five dozen hamburger buns, and a crisper's worth of lettuce, tomatoes, American cheese and onions. The manager called the police once Doucet's car fled the parking lot, and Doucet was arrested within the hour. He was convicted in Loomis Superior Court at the beginning of this year. In denying Doucet's request for transfer, the prison's warden, Yance Boudreaux, claimed that cell transfer requests are difficult to accommodate because of the high population in California state prisons. Only a quarter of the cells in his particular prison have windows, and those cells' current occupants are all prisoners who've been incarcerated for over five years; additionally, almost all of those prisoners have had zero or minimal incident reports. While Mr. Doucet has yet to have a reported incident himself, he has also been in the California State Prison for a relatively short amount of time. Boudreaux claims that granting Doucet's request could lead to similar requests and throw off the Boudreaux claims that granting Doucet's request could lead to similar requests and throw off the meritocracy/longevity standard that has worked well at keeping order. He also claims that Mr. Doucet and almost all prisoners outside of solitary confinement are given at least one hour of outside time every day, through which Doucet could fulfill his religious needs. Mr. Boudreaux did concede, however, that on occasion, outside privileges are suspended prison-wide for various administrative reasons, though typically for no longer than a day or two at a time. Applicable Law: The relevant statute is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq. The two relevant sections of RLUIPA are: 42 U.S.C. 2000cc-1Protection of religious exercise of institutionalized persons, and 42 U.S.C. 2000cc-2Judicial relief. The relevant parts of each statute are excerpted below: 125 42 U.S.C. 2000cc-1(a). (a) General rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental in terest. 42 U.S.C. 2000cc-2(b). (b) Burden of persuasion. If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2 [42 US.C.S. 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantial ly burdens the plaintiff's exercise of religion. Additionally, there is a relevant California Court of Appeal case from our Appellate District (the Third): In re Margarito Jesus Garcia, 202 Cal. App. 4th 892 (Ct. App. 2012). For the time being, you should isolate your analysis to the excerpted statutory sections and Garcia. Issues Presented: Upon receiving Mr. Doucet's near-incomprehensible petition for writ of habeas corpus, the Loomis Superior Court contacted our offices to see if we were willing to take on the case pro bono. There is little documentation on Mr. Doucet''s religion, the Ark of Light. We do know that the religion has its roots in east Texas and that one of the original members moved to California and began an offshoot in Loomis approximately two years ago. There are five aphorisms that the Ark of Light abide by: Light, Intuition, Refraction, Opposites and Music. Beyond that, the only fact we know is that the majority of its members, including Mr. Doucet at the time, live in one large compound in downtown Loomis. Your job is to review the RLUIPA sections above and the Garcia case. For now, only focus on RLUIPA and Garcia's holdings on RLUIPA; another set of associates will deal with the constitutional/First Amendment issues. Lay out the relevant burdens of proof on both sides. Then apply the law above to the current facts to determine how strong a claim you think Mr. Doucet has against the California Department of Corrections and Rehabilitation (CDCR). 126 IN RE GARCIA Court of Appeal of California, Third Appellate District January 11, 2012, Filed C066452 Reporter: 202 Cal. App. 4th 892 * Judges: Opinion by Hull, J., with Blease, Acting P.J., and Mauro, J., concurring. Opinion by: Hull Opinion (Edited for Content) Hull, J.Petitioner Margarito Jesus Garcia, a prison inmate subject to the custody and control of California's Department of Corrections and Rehabilitation (CDCR), filed a petition for writ of habeas corpus challenging the denial of his request to participate in an existing kosher meals program. Petitioner contends his religion, Messianic Judaism, requires that he maintain a kosher diet, and the denial of his request violates his First and Fourteenth Amendment rights as well as the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). (42 U.S.C. 2000cc et seq.) (1) We conclude that, under the circumstances presented, prison officials are in violation of petitioner's statutory rights under RLUIPA. Prison officials [*896] have not disputed either the sincerity of petitioner's religious beliefs or the requirement that he maintain a kosher diet. Nor have they demonstrated the burden imposed on petitioner's religious beliefs by virtue of his exclusion maintain a kosher diet. Nor have they demonstrated the burden imposed on petitioner's religious beliefs by virtue of his exclusion from the kosher meals program furthers a compelling governmental interest and is the least restrictive means of furthering that interest, as required by RLUIPA. In light of the foregoing conclusion, it is unnecessary to address petitioner's constitutional claims. FACTS AND PROCEEDINGS Petitioner is an inmate of the CDCR who, at the time of the petition herein, was housed at Mule Creek State Prison in lone, California (Mule Creek). On July 27, 2009, petitioner submitted a CDCR form requesting to participate in Mule Creek's Jewish kosher diet program (JKDP). On the form, petitioner identified his religion as Messianic Judaism and indicated he had been practicing the religion for the prior two years. He also identified the following dietary law to which he must adhere: \"According to the Torah, am not allowed to eat meat with blood in it, and | am not allowed to eat foods that are mixed with unclean food.\" Petitioner's request was denied by Mule Creek's Jewish chaplain, Rabbi Korik. As the basis for the denial, Korik explained: \"Inmate Garcia has confirmed during the interview that he does not practice Judaism, rather the messianic belief. Per JKDP regulations only inmates practicing Judaism as their sincerely held belief may be approved for the JKDP" 127 Petitioner filed an administrative appeal, which was denied. He thereafter exhausted his administrative remedies and, at each step, the denial was upheld. At no time during this process did prison officials question the sincerity of petitioner's beliefs or the requirement that he adhere to a kosher diet. Petitioner filed a petition for writ of habeas corpus in the superior court, which was denied. He then filed a petition for writ of habeas corpus in this court. We issued an order to show cause returnable in the superior court. (In re Garcia (May 3, 2010, C064186) [order to show cause issued)].) Petitioner presented a declaration in the superior court affirming his commitment to Messianic Judaism. Petitioner stated: "\"One tenet of the Messianic Jewish faith pertains to diet, and while not all Messianic Jews keep kosher, | have embraced this tenet and sincerely wish to follow a kosher diet.\" Petitioner explained Mule Creek does not currently have a Messianic rabbi, but he averred that he met weekly with other Messianic inmates to study and pray. Petitioner also noted: \"I do wish to convert formally to the Messianic Jewish faith, but I currently consider myself to be a Messianic Jew, and this belief is sincere.\" [*897] Petitioner also submitted correspondence concerning the Messianic Jewish faith and other documentation, including a publication from the State of Washington, Department of Corrections. (State of Wn., Dept. of Corrections, Handbook of Religious Beliefs and Practices (rev. 2d ed. 2004) (Washington Handbook).) The Washington Handbook explains: "Messianic Judaism (MJ) is the religion of the followers of Yeshua (Jesus) who desire to recover the Hebrew roots of their faith, worshipping and living in accordance with the Torah (Law) of Moses as taught by Yeshua and His disciples. In the 1st Century CE (AD), MJ was one of the many sects of Judaism. As such, it adheres to many of the tenants [sic] and practices of ancient Judaism.\" (/d. at p. 35.) With regard to diet, the handbook explains: \"MJ groups observe various degrees of kosher eating. The more strict groups follow a traditional rabbinic kosher diet . . . . Where strict kosher diet is being observed, the highest kosher symbols (those of the Orthodox) should be used since these are the most consistent and reliable\" (Washington Handbook, supra, at p. 44.) The Washington Handbook describes some of the specific kosher rules in more detail, noting: \"The kosher food laws are given in Washington Handbook describes some ot the specitic kosher rules in more detail, noting: "The kosher food laws are given in Leviticus and Deuteronomy. Only meat from kosher animals is permitted. These are those that chew the cud and have divided hooves (e.g., cows, goats, sheep, etc.). Kosher fowl are primarily those which are not birds of prey (e.g., chickens, ducks, geese, turkeys). Kosher meat must be slaughtered in such a way as to allow the blood to be entirely drained off. Meat which contains blood is not kosher. Kosher seafood are from fish that have scales and fins. All other seafood is non-kosher (e.g., lobster, crab, and all shellfish). All vegetables and fruit are kosher.\" (Ibid.) The superior court denied the petition. 128 Petitioner then filed the current petition in this court. On January 28, 2011, we issued an order to show cause returnable before this court to respondent Michael Martel, Warden of Mule Creek. Respondent filed a return on February 28, 2011, and petitioner filed a traverse on March 30, 2011. After respondent filed its return, petitioner was transferred to Ironwood State Prison in Blythe, California. Petitioner advised this court of the transfer. Respondent filed a motion to dismiss the petition as moot in light of the transfer. We denied the motion. Petitioner provided this court with documentation, of which we took judicial notice, indicating the rabbi at his current institution denied a request by petitioner to participate in the JKDP there because petitioner \"is not compliant with traditional Judaism for which the Kosher Program was established.\" Respondent submitted three declarations with its return. The first is from L. Maurino, the departmental food administrator of the CDCR. Maurino is [*898] familiar with the dietary programs at the adult institutions of the CDCR, has personal knowledge of the construction, development, and administration of the meal programs and policies, and is a registered dietician. Maurino identifies the following CDCR food programs: (1) a pork-free meal program, (2) a vegetarian meal program, (3) a religious meat alternate program, and (4) the JKDP. The JKDP requires certification by a rabbi, separate utensils, dishes, and storage to ensure no contact between meat and dairy foods, and assembly in a separate kitchen area by trained staff. According to Maurino, 684 inmates participate in the JKDP throughout the 33 California prisons. Maurino states: \"The current budgeted food cost per inmate is $2.90 a day for the reqular meals, $2.62 for the Vegetarian Meal Program, and $3.20 for the Religious Meat Alternate Program. The cost of the [JKDP] is approximately $7.97 per inmate per day. Because of the smaller number of participants in the [JKDP], the higher cost of this food program can be absorbed in the food budget.\" Maurino opines: "A prospective increase in the numbers of inmates participating in the kosher meal program would require more preparation space, more storage areas, increased training and supervision of cooks, and more equipment, labor, and time devoted for food preparation. As such, the department's food budget would be significantly burdened if even a small percentage of other non- Jewish religious groups were allowed to receive kosher meals.\" Maurino also asserts there are approximately 5,000 inmates who self-identify as Muslim in state prison and 1,200 inmates who self-identify as Pagans or other nontraditional, non-Jewish groups, including (but not limited to) Odinists and the House of Yahweh. Maurino indicates he is "aware that inmates representing these religious groups\" have asked to participate in the JKDP. A similar declaration was submitted by J. Yates, the assistant correctional food manager at Mule Creek. Yates asserts that 43 of approximately 3,600 inmates at Mule Creek receive kosher meals. Kosher meals are purchased from a vendor \"as either prepackaged shelf-stable entrees or frozen entrees.\" At Mule Creek, 129 129 kosher meals are prepared in a separate kitchen used solely for that purpose. Breakfast and lunch kosher meals are delivered the previous evening, served cold, and distributed at breakfast. Dinner meals are heated in separately designated microwave ovens and delivered hot. Inmates who receive kosher meals use kosher meal cards, go through the general population feeding lines, present their cards at the serving window, and are given their kosher meals. Yates indicates items such as vegetables, fruit, and salad are provided with kosher meals. When a salad is prepared in the kitchen, it too must be kosher certified using procedures specified by a rabbi, including separate pans, utensils, and a specially designated area. Yates explains: \"This remains [*899] feasible because of the relatively small number of inmates participating in the [JKDP]" According to Yates: \"If the number of inmates who receive kosher meals increase[s], the situation would create staffing, training, and supervision problems. The necessary procedures and precautions that are invalved in preparing kosher food compell] prison authorities to require more supervision of staff and inmate workers to prevent ritual contamination and sabotage. Further, unlike Mule Creek, most prisons do not have a separate kosher kitchen, but have at best, a designated microwave and separate food preparation area for kosher food. Even a modest increase in the number of participants, would require increased storage, more staffing, increased training of new workers, and strain already limited resources allotted for the program.\" Yates notes that kosher food is much desired by non-Jewish inmates because it is perceived as better tasting and of higher quality. He explains: "The kosher program offers items that are not offered in the other inmate meal programs such as honey, and whole, uncut fruits and vegetables. Thus, Jewish kosher meal items are frequently stolen to be consumed, bartered, or sold as contraband. Even with the relatively small number of participants in the kosher meal program, theft prevention, inventory control, and associated custody problems with contraband are ongoing problems. This problem would be greatly exacerbated if the kasher meal program was expanded to include other non-Jewish inmates.\" Finally, respondent submitted a declaration by Rabbi Grossbaum, the current rabbi at Mule Creek. Rabbi Grossbaum states: \"Though Messianic Judaism claims to be a part of Judaism, the belief of Messianic Jews that a messiah has already arrived is contrary to the beliefs and practices of Judaism. However, it is my understanding that Messianic Jews study the Torah, and attempt to adhere, in whole or in part, to the tenets and practices of ancient Judaism.\" He further states: "An inmate who wants to participate in the [JKDP] must be a Jew and/or demanstrate a commitment to Judaism through religious study, attendance at services and an attempt to live and apply Jewish practices into his daily life as an inmate. Conversion is not necessarily required to receive a kosher meal. To the best of my knowledge, [petitioner] has not availed himself of those opportunities or otherwise attempted to qualify to participate in the [JKDP]. And to the extent that [petitioner] proclaims [himself] to be a Jew, albeit a messianic Jew, requiring him to commit to a study of Jewish religious texts, attendance at services, and 130 integrating Jewish practices into his life to qualify to participate in the kosher meal program, would not appear to violate or repudiate his beliefs.\" DISCUSSION viouwuoolvinn 1 [omitted] 11 [omitted] [*902]m Petitioner's RLUIPA Claim In his petition for writ of habeas corpus in this court, petitioner asserts the denial of his request to participate in the JKDP violates his rights under RLUIPA. Petitioner also asserts such denial violates his First Amendment right to practice his religion and his Fourteenth Amendment right to equal protection. (6) "A fundamental principle of constitutional adjudication is that a court will not decide constitutional guestions unless absolutely required to do so to dispose of the matter before the court, which means we will not reach constitutional questions where other grounds are available and dispositive of the issues of the case. (Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445 [99 L. Ed. 2d 534, 544, 108 S. Ct. 1319]; Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220, 230-231 [45 Cal. Rptr. 2d 207, 902 P.2d 225]; Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal. App. 4th 872, 881 [42 Cal. Rptr. 3d 79].)" (Teachers' Retirement Bd. v. Genest (2007) 154 Cal. App. 4th 1012, 1043 [65 Cal. Rptr. 3d 326].) \"[T] he appropriate exercise of judicial power requires that important constitutional issues not be decided unnecessarily where narrower grounds exist for according relief.\" (Communist Party of Indiana v. Whitcomb (1974) 414 U.S. 441, 451, fn. 1 [38 L. Ed. 2d 635, 644, 94 S. Ct. 656] (conc. opn. of Powell, J.).) At oral argument, the parties agreed this matter should be resolved, if possible, on statutory rather than constitutional grounds. In support of his RLUIPA claim, petitioner relies on the traverse he filed in support of his petition in the superior court. On page 3 of that traverse, petitioner asserted \"CDCR has failed to show how refusing to provide Petitioner with a kosher diet serves a compelling state interest . . . " He further asserted the denial of his participation in the JKDP \"has substantially burdened the exercise of his religion.\" The traverse contains 11 pages of argument as to why petitioner's exclusion from the JKDP violates RLUIPA. [*903] In his return to the petition, respondent asserts: "[Petitioner] cannot raise his RLUIPA claim in habeas corpus; rather he must raise the claim in a separate civil proceeding as provided by statute. Even so, respondent denies that [petitioner]'s rights under RLUIPA have been violated because prison officials have 131 not substantially burdened his exercise of religion.\" However, except for arguing the unavailability of habeas corpus relief because of an adequate remedy in federal court, as discussed above, respondent included no argument in his return as to why petitioner has not stated a valid claim under RLUIPA. The bulk of the return addresses petitioner's First Amendment claim, with approximately one page dedicated to the equal protection challenge. At oral argument, respondent asserted the refusal to allow petitioner to participate in the JKDP did not interfere with the practice of his relinion hecalise he is not a .lew and heralise a venetarian diet is availahle to netitioner that wonld satisfv his relinions Or nis rengion pecause ne 1s Not a Jew ana pecause a vegetlarian aiet Is avallable 1o peuuoner tndat wouia sausty nis rengious requirements. As we shall explain, these arguments are not persuasive. "RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government- imposed burdens, consistent with [United States Supreme Court] precedents. Ten years before RLUIPA's enactment, the Court held, in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-882 [108 L. Ed. 2d 876, 110 S. Ct. 1595] (1990), that the First Amendment's Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. . .. \"Responding to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 US.C. 2000bb et seq. RFRA 'prohibits \"[g] overnment\" from \"substantially burden[ing]\" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden \"(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.\" " . . . In City of Boerne |v. Flores (1997) 521 U.S. 507 [138 L. Ed. 2d 624, 117 S. Ct. 2157]], [the United States Supreme Court] invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment. Id., at 532-536 [138 L. Ed. 2d 624,117 S. Ct. 2157]. \"Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 US.C. 2000cc; 3 relates to religious exercise by [*904] institutionalized persons, 2000cc-1." (Cutter v. Wilkinson (2005) 544 U.S. 708, 714-715[161 L. Ed. 2d 1020, 1030, 125 S. Ct. 2113], citation omitted, fns. omitted (Cutter).) (7) Title 42 United States Code section 2000cc-1, part of RLUIPA, provides in part: \"No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person[4] (1) is in furtherance of a compelling governmental interest; and [4] (2) is the least restrictive means of furthering that compelling governmental interest.\" (42 U.S.C. 2000cc-1(a).) Unlike cases 132 arising under the First Amendment, the foregoing prohibition applies even where the burden placed on a prisoner's religious freedom results from a rule of general applicability. (Koger v. Bryan (7th Cir. 2008) 523 F.3d 789, 796.) (8) In pursuing a claim under RLUIPA, \"the plaintiff bears the initial burden of showing (1) that he seeks to engage in an exercise of religion, and (2) that the challenged practice substantially burdens that exercise of religion. 42 U.S.C. 2000cc-2(h). Once the plaintiff establishes this prima facie case, the defendants 'bear the burden of persuasion on any [other] element of the claim, id., namely whether their practice 'is the least restrictive means of furthering a compelling governmental interest. [Citation.]" (Koger v. Bryan, supra, 523 F.3d at p. 796.) In Cutter, the United States Supreme Court rejected a facial challenge to RLUIPA. However, in doing so, the court cautioned: \"We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a 'compelling governmental interest' standard, [citation], '[c] ontext matters' in the application of that standard. [Citation.] Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. [Citation.] They anticipated that courts would apply the Act's standard with 'due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources. [Citation.]" (Cutter, supra, 544 U.S. at pp. Fran Foaalaeir i rad Ad s o 1001 Fem cenlbe