Calorie Count? Prison Food Question Served to SCOTUS

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By Melissa Stanzione

Feb. 24 — Does the First Amendment require a prison to provide a minimum-calorie diet for prisoners fasting for religious purposes?

Prison food service officials have asked the U.S. Supreme Court to weigh in on a case that one scholar calls “an embarrassment to the legal system”.

The U.S. Court of Appeals for the Sixth Circuit denied the officials qualified immunity in a suit brought by a prisoner who alleges his First Amendment rights were violated when officials fed him roughly 1,300 calories daily during a religious fast.

Their petition asks the court to determine whether there is clearly established law dictating the minimum-calorie requirement that could preclude a qualified immunity defense.

The high court requested a response to the petition Feb. 22, indicating its interest in the case.

Inmate Sues

William Welch, a Muslim inmate at the Saginaw Correctional Facility in Michigan, sued prison officials for violating his First Amendment free exercise rights after he allegedly received only 1,300 calories per day during Ramadan.

Ramadan is an important religious practice of the Islamic faith that involves fasting for one month from sunrise to sunset, as well as praying and introspection.

To accommodate Welch during this time, the prison provided him with two bagged meals per day that allegedly contained a total of 1,300 calories.

The U.S. Court of Appeals for the Sixth Circuit in an unpublished opinion upheld the district court's denial of qualified immunity for the prison officials, finding that Welch established a genuine issue of material fact as to whether his particular Ramadan diet “was so lacking as to violate” his right of free exercise of religion.

RLUIPA vs. Constitution

It “looks like both sides have made a hash of this litigation,” Douglas Laycock, a law professor and law of religious liberty scholar at the University of Virginia, Charlottesvlle, Va., told Bloomberg BNA in an e-mail.

The Sixth Circuit “should have identified the right legal theory” for the parties here, Laycock said, calling the opinion an embarrassment.

Holt v. Hobbs, the prison beard case from a year ago, told courts to take prisoners’ religious liberty rights seriously,” Laycock said.

In Holt v. Hobbs, 83 U.S.L.W. 1061, 2015 BL 12127 (U.S. Jan. 20, 2015)(83 U.S.L.W. 1061, 1/20/15), the Supreme Court held that a prisoner has the right to wear a short beard in accordance with his religious faith absent a compelling reason forbidding him to do so.

“But that was under a statute, the Religious Land Use and Institutionalized Persons Act. This case should be under that statute too, but it's apparently filed under the U.S. Constitution, which is much less protective,” Laycock said.

Laycock argued at the Supreme Court on the inmate's behalf in Holt.

“Some courts have said that when a pro se litigant invokes the Free Exercise Clause, we will treat him as also invoking the statute. But the Sixth Circuit does not appear to have gone there,” he said.

The court “was merging free exercise and RLUIPA analysis without seeming to be aware of the difference,” Leslie Griffin, a law and religion professor at the University of Nevada at Las Vegas told Bloomberg BNA.

“It's as if they're missing what we try to get clear in everyone's heads when we teach law and religion: A free exercise and a statutory claim are two different things,” Griffin said.

“Free exercise isn't about a substantial burden,” Griffin said. “The standard is really deferential to the prison authorities.”

An RLUIPA inquiry, however, asks whether a person's religious exercise is substantially burdened and, if so, whether the government used the least restrictive means to further its compelling interest.

Shift From Religion to Immunity

The case was originally about religious liberty but it's now “only indirectly” about the issue, Laycock said. Now, “it's about “the Court's qualified immunity doctrine,” he said.

The Supreme Court's qualified immunity doctrine says that a government official isn't liable for damages from a violation of federal law unless the law on that violation was clearly established at the time of the violation, he said.

That's exactly what the prison officials argue: The law isn't clearly established on whether the First Amendment requires fasting prisoners to receive a certain number of calories daily.

They say that the holding creates a circuit split with the Seventh Circuit in Hall v. Sutton, 581 F. App'x 580, 2014 BL 312163 (7th Cir. 2014).

In Hall, a Muslim inmate alleged he was fed 1,000 to 1,500 fewer calories per day during Ramadan than on a regular day in violation of the First Amendment and RLUIPA.

The Seventh Circuit said in an order that prison officials were entitled to qualified immunity because the defendants didn't violate any clearly established law.

Will High Court Grant Review?

As to what the Supreme Court might do? There's no clear consensus among scholars.

“It's hard for me to think that a circuit split over calories is really going to get the Court's attention,” Griffin said.

There isn't a real circuit split here, Mark Aaron Goldfeder, Director of Emory Law School's Law and Religion Student Program in Atlanta, told Bloomberg BNA in an e-mail.

Hall presents different facts than this case. The inmate had access to a commissary where he could buy more food and “the Seventh Circuit held that taking all the factors into consideration, this could reasonably be considered adequate nutrition,” Goldfeder said.

“I would be surprised if the Court took it because it is less about qualified immunity and more about defining the underlying right,” he said.

“If the Court does take it, then I think they will focus on the second of the questions presented, i.e. what is the threshold for ‘clearly established' in the qualified immunity context.”

According to Laycock, the court is “fascinated” with the problem of qualified immunity. “It has taken several cases a year for years. And it aggressively protects government officials.”

This term, the Court has already issued two summary reversals on qualified immunity (see box).

In contrast to Goldfeder, Laycock seems more optimistic about the case's chances with the justices.

The high court grants many qualified immunity cases, Laycock said. Some of the cases “don't seem very important except that they are qualified immunity cases. They say they don't correct errors in individual cases, but they seem to be doing that in this area. They might do it here,” he said.

The court will likely decide whether to grant review in the case this spring.

To contact the reporter on this story: Melissa Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at