Anthony Schmitt v. Jolene Rebertus

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2707
___________________________
Anthony Schmitt
lllllllllllllllllllllPlaintiff - Appellant
v.
Jolene Rebertus, in her official capacity as Assistant Commissioner of the
Minnesota Department of Corrections; Paul Schnell, in his official capacity as
Commissioner of the Minnesota Department of Corrections
lllllllllllllllllllllDefendants - Appellees
------------------------------
Christian Legal Society; Good News Global; Islam and Religious Freedom Action
Team; Jewish Coalition for Religious Liberty; The National Association of
Evangelicals; The National Legal Foundation
lllllllllllllllllllllAmici on Behalf of Appellant(s)
Freedom From Religion Foundation
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: February 11, 2025
Filed: August 14, 2025
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Before SMITH, KELLY, and KOBES, Circuit Judges.
____________
SMITH, Circuit Judge.
Anthony Schmitt appeals from the district court’s denial of his motion for a
preliminary injunction to require the Minnesota Department of Corrections (MDOC)1
to reinstate “The Quest for Authentic Manhood” (Quest) program that he volunteered
to teach at the Minnesota Correctional Facility (MCF). The MDOC terminated Quest
after determining that the program “directly conflicts with the diversity, equity, and
inclusivity values of the [MDOC] by defining manhood, or the study of masculinity,
through a biblical lense of what a ‘real man looks like[.’]” R. Doc. 16-2, at 4. For the
reasons discussed infra, we reverse the district court’s denial of Schmitt’s motion for
a preliminary injunction and remand to the district court for entry of an order
reinstating the Quest program at MCF pending a full adjudication of the case on the
merits.
I. Background
In 2012, Schmitt, a Christian, volunteered to teach Quest at MCF. “Quest was
created and narrated by Dr. Robert Lewis, through the organization ‘Authentic
Manhood.’” R. Doc. 1, at ¶ 38; see also R. Doc. 16, at ¶ 16. Quest defines its purpose
as follows:
Authentic Manhood is all about setting men up to live lives of truth,
passion and purpose. Our resources offer clear and practical Biblical
insights on God’s design for manhood that are both refreshing and
inspiring. We point men to a gospel-centered vision of life that sets them
up to enjoy God’s grace as they pursue the promises of His Word.
1Schmitt sued Jolene Rebertus, in her official capacity as Assistant
Commissioner of the MDOC; and Paul Schnell, in his official capacity as
Commissioner of the MDOC.
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R. Doc. 1, at ¶ 38. Quest is composed of 24 videos; each video is about one hour in
length and consists of a 45-minute session and discussion. These videos “delve[] into
very difficult issues with relationships that many men have encountered,” including
“relationships with fathers, mothers, wives, and girlfriends.” R. Doc. 16, at ¶ 17.
Quest has been shown in “churches and in prisons across the United States.” Id. at
¶ 19. Since its implementation at MCF, Quest has been a voluntary program. Over the
years, more than a thousand inmates have chosen to enroll in Quest at MCF.
From 2012 until the onset of COVID-19 in 2020, Schmitt and his colleague
“taught Quest at MCF in two sessions each week.” Id. at ¶ 22. “MCF advertised Quest
in each of the housing units of the prison . . . .” Id. at ¶ 26. Inmates voluntarily signed
up for the program by contacting the MCF chaplain. Inmates understood that they
were committing to 12 weeks of programming. Because inmates are frequently
transferred from MCF, Schmitt saved time by presenting only 17 of the 24 Quest
videos to ensure that as many inmates as possible could graduate. At the program’s
conclusion, approximately 25 to 35 inmates graduated.
In 2018, Charles Sutter, MDOC Statewide Recidivism Reduction Project
Supervisor, reviewed the Quest program. Sutter identified several areas of Quest that
aligned with evidence-based practice and some areas that did not. Sutter then
included the following “Note”:
Discrimination based on sexual orientation is illegal in Minnesota.
Under the Minnesota Human Rights Act, sexual orientation is a
“protected class.”
And it is illegal to treat anyone differently because of sexual orientation
in:
• Employment
• Housing
• Public accommodations
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• Public services
• Education
• Credit
• Business
These are called “protected areas.” The Quest module I observed was
called “Week 16-Remembering Dad[.”] It discussed, among other
things, the injuries caused by growing up in a household with an absent
father. Of those injuries, sexual orientation was mentioned and described
homosexuality as an injury. This view is not supported by research [and]
is offensive and close to running afoul of Minnesota’s Human Rights
Act. It should be noted that, some jurisdictions are now stating that
treatment that addresses homosexuality as a treatable character defect
are psychologically damaging and illegal. You should remove this from
Quest’s programming.
R. Doc. 16-1, at 4.
The discussion of sexual orientation in “Remembering Dad” is “consistent with
[Schmitt’s] religious belief that homosexual acts are sinful, not solely driven by
innate sexual orientation, and cause separation between people and God, as all sin
does, but can be avoided through repentance.” R. Doc. 16, at ¶ 40. Nonetheless, after
reviewing Sutter’s findings, Schmitt began skipping that portion of the video in his
presentation of Quest.
On March 17, 2020, MCF ceased all religious programming, including Quest,
because of COVID-19. Religious programing at MCF resumed in 2023. Once
programming resumed, Schmitt selected the 11 videos that he believed would most
“help the inmates get through the most essential materials in the Quest program.” Id.
at ¶ 46.
Then, on July 10, 2023, Jolene Rebertus, MDOC Assistant Commissioner of
Health, Recovery, & Programming, sent Schmitt the following email informing him
that he would no longer be permitted to teach Quest:
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After review of The Quest for Authentic Manhood curriculum, the
decision has been made to discontinue offering this program at MCF- St.
Cloud to incarcerated individuals.
The program directly conflicts with the diversity, equity, and inclusivity
values of the department by defining manhood, or the study of
masculinity, through a biblical lens of what a “real man looks like[.”]
Throughout all sessions reviewed, men were only identified as
heterosexual, seeking ideal relationships and marriage with women. It
is evident that throughout this curriculum, manhood can only be
achieved through heterosexual relationships.
Additionally, throughout many of the sessions, women are also
identified as the problem for creating “soft males[,”] described as
indecisive and weak. Women are described as having fragile frames and
not physically as strong. Mothers are described as ignorant, suffocating,
needy, and unwilling to release control of their sons.
The ideal marriage core role for the wife is described as the “helper” and
husband as the “head[.”] Women are described as submissive in this
role, keeping his leadership in her view, not competing with him, and to
wait for him to take charge. While the teachings do describe the woman
in this role as “honorable[,”] the reinforced stereotypes and biases can
be hurtful and downright dangerous for those participants who either
committed acts of violence, domestic violence, or may be victims of
violence by women.
Our population should be able to explore their identity with
professionals who root practice and teachings safely in trauma informed
science and research. The complete disregard for identifying anyone as
a “successful man” who doesn’t fit the picture outlined in these sessions
completely defies our mission of a person-centered approach to
transforming lives.
Religious services are provided in our prisons as an ongoing opportunity
to explore and practice teachings and traditions of an individual’s
choosing. However, just because a program identifies as a religious
program does not mean the DOC must provide it. Quest teaches
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participants about manhood through a lens of discrimination,
exclusivity, gender biases and stereotypes that not only contradict the
DOC’s mission of providing transformational programming, but can be
hurtful to participants, their families, and victims.
R. Doc. 16-2, at 4 (emphases added).
Schmitt asked Rebertus to reconsider, but she reaffirmed the MDOC’s decision
to discontinue Quest. She advised that the MDOC “take[s] [its] obligations to provide
incarcerated individuals with opportunities to pursue their individual spiritual beliefs
and practices very seriously. Providing spiritual care related to the sacred and/or
religious needs of the individuals entrusted in [the MDOC’s] custody is
fundamental.” R. Doc. 16-3, at 4 (emphasis omitted).
Schmitt filed suit, alleging that the MDOC’s decision to terminate Quest at
MCF violated his First Amendment rights to free speech and free exercise of religion
and establishes a denominational preference in violation of the Establishment Clause.
Schmitt moved for a preliminary injunction to reinstate Quest.
After applying the Dataphase2 factors, the district court denied Schmitt’s
motion for a preliminary injunction. In analyzing Schmitt’s likelihood of success on
the merits, the district court applied the standard of review set forth in Turner v.
Safley, 482 U.S. 78 (1987). “Turner instructs courts to uphold prison regulations that
burden constitutional rights so long as they are ‘reasonably related to legitimate
penological interests.’” Schmitt v. Rebertus, No. 0:24-cv-00034-JRT-LIB, 2024 WL
3904665, at *2 (D. Minn. Aug. 22, 2024) (quoting Turner, 482 U.S. at 89). Applying
2Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en
banc) (holding that courts apply a four-factor test in evaluating a motion for a
preliminary injunction: (1) likelihood of success on the merits, (2) threat of
irreparable harm, (3) balance between the harm and the harm that injunctive relief
would cause to the other party, and (4) the public interest).
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the first Turner factor, the district court concluded that “there is a rational connection
between Rebertus’s decision to terminate Quest and [the MDOC’s] legitimate
penological interest[]” in “rehabilitat[ing] incarcerated individuals and reduc[ing]
recidivism.” Id. at *3. Schmitt argued that “as a matter of law, there is no legitimate
interest in discriminating on the basis of religion.” Id. at *4. The district court,
however, determined that “Rebertus’s termination decision was neutral in the
technical sense.” Id. (internal quotation marks omitted).
According to the court, Rebertus “did not terminate Quest because of its
religious nature” but instead “because it teaches ‘discrimination, exclusivity, gender
biases, and stereotypes’ that directly conflict with the prison’s rehabilitative mission.”
Id. (quoting R. Doc. 16-2, at 4). The court characterized “Rebertus’s reference to
Schmitt’s ‘biblical lens’ [as] descriptive, not discriminatory.” Id. (quoting R. Doc. 16-
2, at 4). The second Turner factor, the district court explained, also weighed in favor
of the MDOC because “there are alternative means for Schmitt to exercise his
allegedly infringed rights.” Id. Specifically, Schmitt could “volunteer again so long
as he adopts a curriculum that comports with the facility’s programming
requirements” or “continue to instruct inmates in the Quest curriculum through
individual visits and written correspondence.” Id. Under the third Turner factor, the
district court concluded that accommodating Schmitt’s preference would burden MCF
because “Schmitt’s teachings may harm those inmates who committed or were
victims of acts of gender-based violence.” Id. Finally, the court found that the fourth
Turner factor weighed against Schmitt because Schmitt failed to “propose[] a de
minimis cost alternative.” Id.
As to the remaining Dataphase factors, the district court concluded that (1)
because Schmitt’s First Amendment rights were not violated, he “fail[ed] to show
irreparable harm”; (2) the public had a strong interest “in allowing prison
administrators discretion over inmate rehabilitation and the operation of their
facilities”; and (3) “the balance of harms and public interest favor[ed] Rebertus”
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based on her determination “that the Quest program is inappropriate for the prison
environment and detrimental to the rehabilitative mission.” Id. at *4–5.
II. Discussion
On appeal, Schmitt challenges the district court’s denial of his motion for a
preliminary injunction. Schmitt argues that the MDOC “cancelled Quest because of
[his] religious beliefs, meaning that their decision is subject to the strictest scrutiny
under the law.” Appellant’s Br. at 26. Applying strict scrutiny, Schmitt argues that he
can “easily demonstrate a fair likelihood of success on the merits of the case.” Id.
(internal quotation marks omitted). He maintains that the district court erred in
applying Turner because “[a]ctions targeting non-inmates based on their religious
beliefs and speech . . . are not evaluated under Turner.” Id. at 29. Alternatively, he
argues that even if Turner applies, he is still likely to prevail on the merits.
The MDOC argues that “prisons are nonpublic fora for First Amendment
purposes, so [it] has a right to make subject-matter distinctions among its program
offerings and limit access to its prisons.” Appellees’ Br. at 13. It also argues that even
“[i]f Schmitt has a constitutional right to dictate the content of [M]DOC prison
programming, the district court correctly examined Schmitt’s claims using the
deferential test . . . in Turner v. Safley.” Id. at 12. Applying this deferential test, the
MDOC maintains that its “decision to discontinue Quest served legitimate
penological interests.” Id.3
3The MDOC also “contend[s] for the first time on appeal that [its rehabilitative
programming] should be treated as government speech, and, as such exempt from
. . . First Amendment scrutiny.” Byrne v. Rutledge, 623 F.3d 46, 53 n.7 (2d Cir. 2010)
(internal quotation marks omitted). As Schmitt points out, nowhere in the MDOC’s
briefing below did it argue that the government speech doctrine is applicable. See
generally R. Doc. 21. Instead, it argued that “Schmitt is not likely to succeed on the
merits of his First Amendment claims because the [M]DOC’s decision to discontinue
Quest as a programming option for incarcerated persons at MCF-SCL was reasonably
related to a legitimate penological interest.” Id. at 10. Because the MDOC failed to
advance this argument before the district court, we will not consider it for the first
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We possess jurisdiction to review a district court’s interlocutory order denying
a party’s motion for a preliminary injunction. Hotchkiss v. Cedar Rapids Cmty. Sch.
Dist., 115 F.4th 889, 892 (8th Cir. 2024) (citing 28 U.S.C. § 1292(a)(1)). “We review
a district court's ultimate ruling on a preliminary injunction for abuse of discretion,
though we review its underlying legal conclusions de novo.” Home Instead, Inc. v.
Florance, 721 F.3d 494, 497 (8th Cir. 2013). We review for clear error the district
court’s factual findings. Hotchkiss, 115 F.3d at 892.
In deciding whether to grant preliminary injunctive relief, courts consider the
four Dataphase factors: “(1) the threat of irreparable harm to the movant; (2) the state
of balance between this harm and the injury that granting the injunction will inflict
on other parties’ litigant; (3) the probability that movant will succeed on the merits;
and (4) the public interest.” Dataphase Sys., Inc., 640 F.2d at 114.
A. Likelihood of Success on the Merits
“While no single [Dataphase] factor is determinative, the probability of success
factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th
Cir. 2013) (internal quotation marks and citations omitted). Schmitt “must
demonstrate that [he] has a ‘fair chance’ of prevailing on the merits.” Sleep Number
Corp. v. Young, 33 F.4th 1012, 1016 (8th Cir. 2022). “To show a fair chance of
prevailing, [Schmitt] must show that [his] claims provide fair ground for litigation,
but [he] need not show that [he] has a greater than fifty per cent likelihood of
success.” Id. at 1016–17 (internal quotation marks and citations omitted).
time on appeal. See Byrne, 623 F.3d at 53 n.7 (stating that the respondents’ “position
was never advanced before the district court and accordingly will not be considered”
on appeal); Perry v. Precythe, 121 F.4th 711, 716 (8th Cir. 2024) (“[O]rdinarily, this
court will not consider an argument raised for the first time on appeal.” (internal
quotation marks omitted)).
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In Turner, the Supreme Court “formulate[d] a standard of review for prisoners’
constitutional claims that is responsive both to the ‘policy of judicial restraint
regarding prisoner complaints and [to] the need to protect constitutional rights.’” 482
U.S. at 85 (second alteration in original) (quoting Procunier v. Martinez, 416 U.S.
396, 406 (1974)). The Court held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Id. at 89. This standard ensures that “prison administrators,
and not the courts, . . . make the difficult judgments concerning institutional
operations.” Id. (cleaned up). “Subjecting the day-to-day judgments of prison officials
to an inflexible strict scrutiny analysis would seriously hamper their ability to
anticipate security problems and to adopt innovative solutions to the intractable
problems of prison administration.” Id. Applying strict scrutiny in such circumstances
“would also distort the decisionmaking process, for every administrative judgment
would be subject to the possibility that some court somewhere would conclude that
it had a less restrictive way of solving the problem at hand.” Id. The result would be
courts “becom[ing] the primary arbiters of what constitutes the best solution to every
administrative problem, thereby ‘unnecessarily perpetuat[ing] the involvement of the
federal courts in affairs of prison administration.’” Id. (second alteration in original)
(quoting Martinez, 416 U.S. at 407).
The reasonableness test articulated in Turner is composed of four factors:
(1) whether the policy has a valid rational connection to a legitimate
governmental interest;
(2) whether alternative means are open to those desiring to communicate
with inmates to exercise the asserted right;
(3) what impact an accommodation of the right would have on guards
and inmates and prison resources; and
(4) whether there are ready alternatives to the policy.
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Hum. Rts. Def. Ctr. v. Baxter Cnty. (Baxter II), 129 F.4th 498, 504 (8th Cir. 2025)
(quoting Hum. Rts. Def. Ctr. v. Baxter Cnty. (Baxter I), 999 F.3d 1160, 1164 (8th Cir.
2021)). “The first factor operates as a threshold condition that the [policy] must
satisfy to pass constitutional muster.” Sisney v. Kaemingk, 15 F.4th 1181, 1190 (8th
Cir. 2021) (emphasis added). Only if the policy “satisfies this threshold requirement
[must] the court . . . determine the [policy’s] constitutionality by balancing the
remaining three factors.” Id.
Subsequently, “the Supreme Court found that the Turner analysis applies to
restrictions on the rights of inmates and outsiders, and ‘any attempt to forge separate
standards for cases implicating the rights of outsiders is out of step’ with the
supporting cases the Court expressly relied on in Turner.” Simpson v. Cnty. of Cape
Girardeau, 879 F.3d 273, 278 n.2 (8th Cir. 2018) (quoting Thornburgh v. Abbott, 490
U.S. 401, 410 n.9 (1989)); see also Baxter II, 129 F.4th at 503 (applying Turner “[t]o
determine whether a jail policy violates the First Amendment rights of an entity
seeking to communicate with inmates”).
But “Turner’s reasonable-relationship test [applies] only to rights that are
inconsistent with proper incarceration.” Johnson v. California, 543 U.S. 499, 510
(2005) (internal quotation marks omitted). In other words, it applies to “rights that
must necessarily be limited in the prison context.” Garrett v. Lumpkin, 96 F.4th 896,
902 (5th Cir. 2024) (citing Johnson, 543 U.S. at 510 (“This is because certain
privileges and rights must necessarily be limited in the prison context.”)). The
Supreme Court has applied Turner to “First Amendment challenges to prison
regulations, including restrictions on freedom of association, limits on inmate
correspondence, restrictions on inmates’ access to courts, restrictions on receipt of
subscription publications, and work rules limiting prisoners’ attendance at religious
services.” Johnson, 543 U.S. at 510 (citations omitted).
By contrast, Turner does not apply to rights that are “consistent with proper
incarceration.” Lumumba v. Kiser, 116 F.4th 269, 279 (4th Cir. 2024). For example,
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Turner does not apply to “[t]he right not to be discriminated against based on one’s
race.” Johnson, 543 U.S. at 510. Instead, “all racial classifications [imposed by the
government] . . . must be analyzed by a reviewing court under strict scrutiny.” Roe v.
Crawford, 514 F.3d 789, 793 (8th Cir. 2008) (alteration and ellipsis in original)
(quoting Johnson, 543 U.S. at 505). This is because “[r]acial classifications are
viewed as immediately suspect, and their usage can seriously damage the integrity of
a prison system.” Id. at 793–94 (citation omitted). Additionally, the Supreme Court
has “not used Turner to evaluate Eighth Amendment claims of cruel and unusual
punishment in prison.” Johnson, 543 U.S. at 511 (recognizing that the “‘deliberate
indifference’ standard” applies to Eighth Amendment claims). “This is because the
integrity of the criminal justice system depends on full compliance with the Eighth
Amendment.” Id.
Schmitt contends that strict scrutiny, not Turner, applies to his First
Amendment claims. He argues that “just because courts have applied Turner to First
Amendment cases . . . when the regulation is neutral and generally applicable[] does
not mean they apply Turner” to cases like his that involve policies that discriminate
against religion. Appellant’s Br. at 47–48. Schmitt maintains that “Turner is not the
correct path when anyone, inmate or outsider, is targeted for non-neutral treatment
because of their religious beliefs.” Id. at 48.
We need not, however, resolve whether strict scrutiny applies to Schmitt’s
particular First Amendment claims. Assuming, without deciding, that Turner applies,
we hold that on the preliminary injunction record before us, Schmitt is likely to
succeed on the merits of his First Amendment claims.
“We begin with the first [Turner] factor”—“whether the policy has a valid
rational connection to a legitimate governmental interest.” Baxter II, 129 F.4th at 504
(internal quotation marks omitted). “Without a rational connection to a legitimate
governmental interest, a policy fails the Turner test irrespective of whether the other
factors tilt in its favor.” Id. (internal quotation marks omitted). “Generally, the prison
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bears the burden of proving the existence of a rational connection between the
challenged regulation and a legitimate government interest.” Sisney, 15 F.4th at 1190
(internal quotation marks omitted). To satisfy this burden, the prison must show “that
the policymaker might reasonably have thought that” the policy would “advance[] the
government interest.” Id. (internal quotation marks omitted). “Unless a rational
connection between the regulation and the asserted interest is a matter of common
sense, the prison must proffer some evidence to support the existence of such a
connection.” Id. (internal quotation marks and citations omitted).
Here, the district court found that in the MDOC’s letter terminating Quest,
Rebertus advanced the MDOC’s penological interest in rehabilitating inmates and
reducing recidivism.4 “[R]ehabilitation is a legitimate penological interest . . . .”
McKune v. Lile, 536 U.S. 24, 36 (2002); see also Dawson v. Scurr, 986 F.2d 257, 262
(8th Cir. 1993) (recognizing “the legitimate penological interest[] in rehabilitation”).
The first Turner factor, however, requires more than a legitimate penological
interest. “[T]he governmental objective must be a legitimate and neutral one.” Turner,
482 U.S. at 90 (emphasis added). A prison policy must “operate[] in a neutral fashion,
without regard to the content of the expression.” Id. “This means that the proffered
mechanism by which the regulation promotes the legitimate government interest must
be ‘unrelated to the suppression of expression.’” Sisney, 15 F.4th at 1190 (quoting
Thornburgh, 490 U.S. at 415).
“Religion is [a] viewpoint from which ideas are conveyed.” Good News Club
v. Milford Cent. Sch., 533 U.S. 98, 112 n.4 (2001). The First Amendment prohibits
the state from “bas[ing] laws or regulations on hostility to a religion or religious
4Although Rebertus advanced another penological interest—“safety and
security inside the facility”—the district court found that Rebertus’s letter “raised
only the rehabilitation concerns,” not security concerns. Schmitt, 2024 WL 3904665,
at *3. In this appeal, we need not resolve whether the MDOC advanced its security
interest in terminating Quest.
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viewpoint.” Masterpiece Cakeshop v. Colo. C.R. Comm’n, 584 U.S. 617, 638 (2018).
“[T]he government, if it is to respect the Constitution’s guarantee of free exercise,
cannot impose regulations that are hostile to the religious beliefs of affected citizens
and cannot act in a manner that passes judgment upon or presupposes the illegitimacy
of religious beliefs and practices.” Id. The “[g]overnment fails to act neutrally when
it proceeds in a manner intolerant of religious beliefs or restricts practices because of
their religious nature.” Fulton v. City of Philadelphia, 593 U.S. 522, 533 (2021).
Moreover, the government “may not discriminate against some or all religious
beliefs.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 461
(2017) (internal quotation marks omitted). And even “subtle departures from
neutrality on matters of religion” are prohibited by the Free Exercise Clause.
Masterpiece Cakeshop, 584 U.S. at 638 (internal quotation marks omitted). In sum,
“[t]he government must abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the rationale for the
restriction.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829
(1995).
Governmental policies affecting First Amendment liberties must be neutrally
applied. “If a policy is not neutrally applied, it cannot withstand constitutional
scrutiny.” Baxter II, 129 F.4th at 504 n.4 (citing Turner, 482 U.S. at 90). “For
example, although ‘inmate rehabilitation’ is a legitimate government interest, a prison
may not censor ‘literature advocating racial purity’ on the ground that exposure to
racist ideas inhibits rehabilitation.” Sisney, 15 F.4th at 1190 (first quoting Dawson,
986 F.2d at 261; then quoting McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987)).5
5See also Thornburgh, 490 U.S. at 416 n.14 (explaining that “regulations
barr[ing] writings that ‘unduly complain’ or ‘magnify grievances,’ express
‘inflammatory political, racial, religious or other views,’ or are ‘defamatory’ or
‘otherwise inappropriate’ . . . . were decidedly not ‘neutral’ in the relevant sense”
because they “fairly invited prison officials and employees to apply their own
personal prejudices and opinions as standards for prisoner mail censorship” (quoting
Martinez, 416 U.S. at 415)); Emad v. Dodge Cnty., 71 F.4th 649, 653 (7th Cir. 2023)
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Here, although the MDOC set forth a legitimate government interest, its termination
of Quest was not “in a neutral fashion, without regard to the content of the
expression.” See Turner, 482 U.S. at 90.
Rebertus’s letter plainly states that the MDOC did not oppose Schmitt teaching
generally about “manhood, or the study of masculinity”; instead, it objected to
Schmitt discussing the topic “through a biblical lens of what a ‘real man looks like’”
or through what the MDOC perceived as “through a lens of discrimination,
exclusivity, gender biases and stereotypes.” R. Doc. 16-2, at 3 (emphases added); see
also R. Doc. 22, at ¶¶ 11–12 (“Quest’s content devalues women and LGBTQ+
individuals,” contains “stereotypes,” and “promote[s] negative beliefs about certain
groups of people”).6 In short, the MDOC objected to Schmitt’s religious viewpoint
(“[T]he district court agreed that the jail policy limiting group prayer serves the
interests of security, institutional order, and staff safety, thereby satisfying the first
factor of the Turner test. Although true that security interests often can justify
limitations on group gatherings in the prison context, a policy that operates to
discriminate against Muslim detainees cannot satisfy Turner as a matter of law.”
(internal quotation marks omitted)); cf. Jarrard v. Sheriff of Polk Cnty., 115 F.4th
1306, 1320 (11th Cir. 2024) (holding that jail officials’ objections to “the following
teachings: (1) persons who are baptized through full immersion will go to Hell; (2)
persons with a tattoo(s) will go to Hell; or (3) persons who take medications will go
to Hell. . . . indicate that while they will permit discussions that don’t mention Hell,
or even of things that won’t land one in Hell, they won’t tolerate discussion of things
that will result in damnation” (internal quotation marks omitted)).
6The fact that the MDOC offers “a variety of [other] Christian-based
programming and worship opportunities for its incarcerated population” does not
render its decision to terminate Quest a neutral one. R. Doc. 22, at ¶ 13 (emphasis
added). Viewpoint neutrality prohibits the MDOC from favoring other Christian
viewpoints or denominations over Schmitt’s. Cf. Larson v. Valente, 456 U.S. 228,
244–45 (1982) (“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another. . . . This
constitutional prohibition of denominational preferences is inextricably connected
with the continuing vitality of the Free Exercise Clause.”).
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on masculinity. This is viewpoint discrimination. As a result, the MDOC has failed
to satisfy the threshold Turner factor, and we need not proceed further. See Hum. Rts.
Def. Ctr., 129 F.4th at 504 (“Without a rational connection to a legitimate
governmental interest, a policy fails the Turner test irrespective of whether the other
factors tilt in its favor.” (internal quotation marks omitted)). Because Turner is not
satisfied, Schmitt has established his likelihood of success on the merits.
B. Remaining Dataphase Factors
“When a plaintiff has shown a likely violation of his or her First Amendment
rights, the other requirements for obtaining a preliminary injunction are generally
deemed to have been satisfied.” Minn. Citizens Concerned for Life, Inc. v. Swanson,
692 F.3d 864, 870 (8th Cir. 2012) (internal quotation marks omitted). First, “[t]he loss
of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion). Second, “it is always in the public interest to protect constitutional rights.”
Rodgers v. Bryant, 942 F.3d 451, 458 (8th Cir. 2019) (internal quotation marks
omitted). Third, “the balance of the equities generally favors the constitutionally-
protected freedom of expression.” Id. (cleaned up).
Based on our conclusion that Schmitt is likely to succeed on the merits of his
First Amendment claim, we also find that the other Dataphase factors weigh in his
favor. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (explaining that,
in a First Amendment case, likelihood of success on the merits is “often the
determining factor in whether a preliminary injunction should issue”) (“In a First
Amendment case, therefore, the likelihood of success on the merits is often the
determining factor in whether a preliminary injunction should issue.”) , overruled on
other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012)
(en banc).
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III. Conclusion
Accordingly, we reverse the district court’s denial of Schmitt’s motion for a
preliminary injunction and remand to the district court for entry of an order
reinstating the Quest program at MCF pending a full adjudication of the case on the
merits.
KELLY, Circuit Judge, dissenting.
In my view, MDOC makes a strong argument that its rehabilitative
programming constitutes government speech. Given the unusual circumstances of this
case, I would reach that argument and affirm the denial of a preliminary injunction.
As I see it, it is common sense that a prison, like a school, can curate the
programming it provides. See Walls v. Sanders, --- F.4th ---, 2025 WL 1948450, at
*4 (8th Cir. July 16, 2025) (explaining that, in the context of a public school
curriculum, the government “has substantial, if not absolute, discretion in selecting
what materials and information to provide”). MDOC voiced a version of this
common-sense argument when opposing Schmitt’s motion for a preliminary
injunction.7 Here, where Schmitt seeks an atypical type of preliminary injunctive
relief—requiring a prison to reinstate rehabilitative programming it does not want to
provide—I would address MDOC’s argument. See Gap, Inc. v. GK Dev., Inc., 843
F.3d 744, 748–49 (8th Cir. 2016) (noting that this court has the discretion to
“address[] new arguments raised on appeal where the new issue is encompassed in
a more general argument previously raised and no new evidence is presented on
appeal” (quoting United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016))).
7See, e.g., R. Doc. 37 at 24 (“It may be that Mr. Schmitt is the facilitator, but
if you’re an inmate and you sign up for . . . programming . . . while you are
incarcerated, it is clearly being at least tacitly endorsed by the DOC.”); id. (arguing
that Schmitt does not have “a right to determine what DOC programming is going to
look like”).
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“When the government wishes to state an opinion, . . . to formulate policies, or
to implement programs, it naturally chooses what to say and what not to say.”
Shurtleff v. City of Boston, 596 U.S. 243, 251 (2022). Whether the government is
speaking for itself or opening a forum for the speech of others can pose line-drawing
problems, particularly when the government “invites the people to participate in a
program.” Id. at 252. This case is an example, as MDOC permits volunteers to help
with programming. In these instances, “we conduct a holistic inquiry . . . to determine
whether the government intends to speak for itself or to regulate private expression.”
Id. We consider “the history of the expression at issue; the public’s likely perception
as to who (the government or a private person) is speaking; and the extent to which
the government has actively shaped or controlled the expression.” Id.
By statute, the MDOC Commissioner is required to “develop, implement, and
provide” an array of rehabilitative programming, including programs addressing
domestic abuse, sex offender treatment, and career programming. See Minn. Stat.
Ann. § 244.03, subd. 1(a). “[S]electing, designing, and implementing programs under
this section are the sole responsibility of the commissioner.” Id. § 244.03, subd. 1(b).
This statutory command plainly authorizes the government to speak for itself in
developing and curating rehabilitative programming. The Commissioner has done so
for a long time, see Minn. Stat. § 243.85 (1961), and I struggle to see how the public
would view rehabilitative programming in a prison as less controlled by the
government than a curriculum in a classroom.8 See Walls, 2025 WL 1948450, at *4;
cf. Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 135 (1977) (“[A] prison
is most emphatically not a ‘public forum’ . . . .”). It thus seems natural to me to
conclude that MDOC’s rehabilitative programming constitutes government speech,
8The fact that volunteers convey the government’s chosen rehabilitative
programming does not change the fact that the government is speaking. Cf. Walker
v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 204–06, 208 (2015)
(holding that “specialty license plates . . . convey government speech” despite the fact
that private individuals display the messages).
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casting doubt on Schmitt’s free-speech and free-exercise claims. See Matal v. Tam,
582 U.S. 218, 234 (2017) (“When a government entity embarks on a course of action,
it necessarily takes a particular viewpoint and rejects others.”).9
I also view the remainder of the Dataphase factors differently. See Dataphase,
Sys., 640 F.2d at 114. Even assuming Schmitt has suffered a free-speech or free-
exercise harm, any such harm appears to be mitigable while the lawsuit progresses:
the government represents that Schmitt may offer the exact same content from the
Quest program to incarcerated individuals in other ways, such as via the mail, small
group visitation, or, as the government said at oral argument, possibly through group
religious services arranged with the chaplain. And in my view, the public interest and
balance of the equities weigh strongly in favor of MDOC. Schmitt seeks to force a
prison to reinstate a program—with the prison’s stamp of approval—that the prison
concluded was “harmful and hinder[ed] the rehabilitation process for incarcerated
individuals.” Typically, we defer to prison administrators about these things. See
Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“We must accord substantial
deference to the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a corrections system and
for determining the most appropriate means to accomplish them.”). I would not pick
this case as the rare scenario where we deviate from that general rule.
9Schmitt did not move for a preliminary injunction on his Establishment Clause
claim, and the record is currently unclear on whether the prison regulates religious
programming, and whether, or to what extent, religious and rehabilitative
programming are intertwined. See Minn. Stat. Ann. § 244.03 (noting that “the
commissioner must develop” various rehabilitative programs, including “spiritual and
faith-based programming,” but only “as appropriate”); see also Walls, 2025 WL
1948450, at *4 (“Government speech is not immune from all constitutional
challenges . . . . The Establishment Clause, for example, limits government speech.”).
But, as I explain below, I would reserve adjudication of these issues for a completed
record, without granting a preliminary injunction.
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This case presents cross-cutting and complex legal issues, and the record is
incomplete. In light of the circumstances of this case and the specific preliminary
relief Schmitt seeks, these very reasons—a lack of factual development and the need
for additional legal analysis—counsel in favor of denying, not granting, the
preliminary injunction. Indeed, “[a]t the early stage of a preliminary injunction
motion, the speculative nature of this particular inquiry militates against any wooden
or mathematical application of the test.” United Indus. Corp. v. Clorox Co., 140 F.3d
1175, 1179 (8th Cir. 1998) (noting that at the preliminary injunction stage, “a court
should flexibly weigh the case’s particular circumstances to determine whether the
balance of equities so favors the movant that justice requires the court to intervene . . .
[before] the merits are determined.” (citation omitted)).
I respectfully dissent.
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