James Harrison Fox; Scott David Perreault v. HEIDI E. WASHINGTON, Director of the Michigan Department of Corrections (MDOC)

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES HARRISON FOX; SCOTT DAVID PERREAULT,
Plaintiffs-Appellants,
v.
HEIDI E. WASHINGTON, Director of the Michigan
Department of Corrections (MDOC),
Defendant-Appellee.
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No. 21-1694
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:13-cv-01003—Phillip J. Green, Magistrate Judge.
Argued: April 5, 2023
Decided and Filed: June 26, 2023
Before: SUTTON, Chief Judge; GRIFFIN and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Breia Lassiter, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for
Appellants. Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Daniel E. Manville, MICHIGAN STATE
UNIVERSITY, East Lansing, Michigan, for Appellants. Michael R. Dean, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
>

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No. 21-1694 Fox, et al. v. Washington Page 2
_________________
OPINION
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GRIFFIN, Circuit Judge.
Plaintiffs are adherents to Christian Identity, a religion that is “explicitly racist.” Fox v.
Washington, 949 F.3d 270, 273 (6th Cir. 2020). In its view, Caucasians are “God’s chosen
people.” Id. at 274 (internal quotation marks omitted). After the Michigan Department of
Corrections refused to recognize Christian Identity as a religion for purposes of the Michigan
prison system, plaintiffs brought this declaratory judgment action under the Religious Land Use
and Institutionalized Person Act of 2000, 42 U.S.C. § 2000cc et seq. (RLUIPA), requesting that
the Department be directed to recognize Christian Identity as a religion. The district court
affirmed the Department’s denial, and plaintiffs appealed.
In Fox, we held that plaintiffs satisfied the first two parts of the three-part RLUIPA test,
but we remanded to the district court for the Department to sustain its “heavy burden” under a
strict scrutiny analysis to show that its refusal to recognize Christian Identity as a religion
furthered a compelling governmental interest, and, if so, that its denial was the least restrictive
means of furthering such a compelling interest. 949 F.3d at 283.
On remand, the district court concluded that the Department met its burden and that
refusing to recognize Christian Identity was the least restrictive means to ensure its compelling
governmental interest. We disagree and hold that the Department failed to satisfy its burden of
showing that its denial of recognition was the least restrictive means of furthering a compelling
governmental interest. Alternatives, other than to simply accept or reject recognition, were
available and included in the Department’s policies, but never considered by it.
Accordingly, we reverse the judgment of the district court and remand for entry of
judgment in plaintiffs’ favor.

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I.
Following our previous decision, the district court held an evidentiary hearing during
which the Department produced additional evidence regarding the potential security threat posed
by Christian Identity. The Department’s principal witness at the hearing was Todd Bechler, a
“senior intelligence analyst with the emergency management section.” Bechler testified that
Christian Identity “tends to be more towards a white supremacist-type of ideological
perspective.” He acknowledged that the Christian Identity religion itself was not directly
responsible for violence but noted that “there is significant evidence to suggest that the leaders of
most [of] the significant white supremacist organizations are adherent to Christian Identity.” He
opined that Christian Identity should not be recognized by the Department “based solely on the
separation of the racial component.” In Bechler’s view, recognizing Christian Identity as a
religion would likely increase racial tensions in the Department’s facilities. That was an
important consideration because minimizing racial tensions reinforces facility security.
According to Bechler, it was the Department’s “position” that “Christian Identity is a racial[ly]
motivated movement that possessed [sic] a threat to the overall security of our institution.”
Bechler also testified about “security threat groups,” noting that, although entire groups could be
labeled as a “security threat group,” that designation normally attached to specific individuals.
In theory, the entire Christian Identity group could be designated as a security threat group. No
such designation was made here.
Plaintiffs also testified at the hearing. Both testified that Christian Identity advocated for
nonviolence and that any violence based on racism conflicted with Christian Identity teachings.
They also testified that they would permit non-Caucasians to attend Christian Identity services
and advise them ahead of any service of the tenets of the Christian Identity religion. In addition,
plaintiffs testified that, if an individual at a service acted aggressively toward another, they
would ask the aggressor to leave.
The district court issued a written order concluding that the Department’s recognition of
Christian Identity as a religion would likely threaten the safety and security of the Department’s
facilities. In doing so, it held that the Department has a compelling interest in prison safety and
that recognizing an “explicitly racist” religion like Christian Identity would likely increase the

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risk of violence in the Department’s facilities. Then, in a single paragraph, it found that not
recognizing Christian Identity was the least restrictive means to further the Department’s safety
interest because “[f]ormal recognition of a faith group is a binary question.” Significantly, the
court did not address any alternatives to lessen the potential security threat posed by recognizing
the religion. Accordingly, the district court again granted judgment in the Department’s favor on
plaintiffs’ RLUIPA claim. This second appeal followed.
II.
On appeal, we review the court’s factual findings for clear error and its legal conclusions
de novo. Fox, 949 F.3d at 276. “A finding is clearly erroneous when, although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. (citation omitted). That said, we review de
novo the question of whether a substantial burden on religious exercise “serves a compelling
interest in the least restrictive means.” Ackerman v. Washington, 16 F.4th 170, 180 (6th Cir.
2021).
III.
We remanded this case for the Department to demonstrate that it had a “compelling
governmental interest” in not recognizing Christian Identity as a religion and that it employed the
“least restrictive means” in doing so. Fox, 949 F.3d at 282. The Department “face[d] a heavy
burden” in this inquiry. Id. at 283. We agree with plaintiffs that the Department did not sustain
its burden.
Under RLUIPA, “the government cannot discharge [its] burden by pointing to broadly
formulated interests.” Ramirez v. Collier, 142 S. Ct. 1264, 1278 (2022) (internal quotation
marks omitted). “It must instead demonstrate that the compelling interest test is satisfied through
application of the challenged law to the particular claimant whose sincere exercise of religion is
being substantially burdened.” Id. (internal quotation marks and brackets omitted); see also id.
at 1281 (“RLUIPA, however, requires that courts take cases one at a time, considering only the
particular claimant whose sincere exercise of religion is being substantially burdened.”) (internal
quotation marks omitted). This individualized inquiry also applies when an inmate seeks

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permission to engage in group religious services. Byrd v. Haas, 17 F.4th 692, 694, 699–700
(6th Cir. 2021); see also Haight v. Thompson, 763 F.3d 554, 563–64 (6th Cir. 2014) (applying the
individualized-inquiry standard to a request for a sweat lodge that would be used for group
services). Moreover, speculation cannot carry the Department’s burden because RLUIPA
requires a case-by-case inquiry. Ramirez, 142 S. Ct. at 1280. Similarly, “[b]ecause the focus is
on the interest in burdening the specific prisoner, the state’s interest in merely avoiding other and
additional accommodations—a slippery slope—is usually insufficient.” Ackerman, 16 F.4th at
187.
Crucially, the Department bears the burden of demonstrating there are no less restrictive
means to ensure facility security than refusing to recognize Christian Identity. Ramirez, 142 S.
Ct. at 1281. This is an “exceptionally demanding” standard—the government must “show that it
lacks other means of achieving its desired goal without imposing a substantial burden on the
exercise of religion by the objecting party. If a less restrictive means is available for the
Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 574 U.S. 352,
364–65 (2015) (internal quotation marks, alterations, and internal citations omitted). Finally,
“[c]ourts must hold prisons to their statutory burden, and they must not assume a plausible, less
restrictive alternative would be ineffective.” Id. at 369 (internal quotation marks omitted). “[I]n
the absence of evidence demonstrating (as opposed to lawyer arguments speculating) that the
prison considered and rejected alternatives more tailored to its security interest, the prison’s
prohibition cannot withstand [the least-restrictive-means] aspect of strict scrutiny.” Haight, 763
F.3d at 564.
The district court framed the Department’s decision on whether to recognize Christian
Identity as a binary choice: recognize Christian Identity and allow group worship, or not.
Because, in its view, not recognizing Christian Identity was the safer of the two options, the
district court held that not recognizing it was the least restrictive means to ensure facility
security. This framing, of course, implicates the requirement that the Department show it
considered alternatives before denying plaintiffs’ request. But the Department’s own policy and
lack of individualized inquiries in this matter demonstrate options more than an either/or
decision.

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Begin with the Department’s “policy directive” for “religious beliefs and practices of
prisoners.” It plainly does not allow unfettered group worship simply because the Department
recognizes a religion. Instead, it requires continuous staff supervision of services in Level II
facilities and random staff supervision in Level I facilities; forbids inmates from guarding the
door during services or engaging in “[m]ilitaristic type behavior”; notes that failure to comply
with the policy can lead to ending the service or individual removal from the service; and allows
the Department to “prohibit a religious practice . . . if it is a threat to custody and security.” Put
differently, it expressly places limits on group worship by Christian Identity adherents. The
Department, however, put forth no evidence supporting why this policy was insufficient to
address its concerns about facility security.
To the extent the Department faced a binary choice because its decision to recognize
Christian Identity as a religion would apply to all facilities, that is a problem created by its
policy. A religious accommodation cannot be denied based solely on a policy. See Fox, 949
F.3d at 277. So, the Department cannot hide behind the broad language of its policy that makes
plaintiffs’ request for recognition apply to all the Department’s facilities. The Department has
not explained why recognition must apply to all facilities at once. Nor has it addressed whether
the policy could be changed in this or any other way to facilitate plaintiffs’ request while
maintaining facility security. Based on the record before us, it appears that the Department never
even considered doing so.
And even if the Department did consider appropriate alternatives, it wholly failed to link
its reasons to deny recognition to plaintiffs and instead justified its denial with the broad brush of
Christian Identity being a racist religion that posed a potential security threat. RLUIPA
nevertheless requires an individual inquiry even when group worship is the sought
accommodation. See Byrd, 17 F.4th at 694, 699–700 (“demand[ing] a tailored inquiry that turns
on the individual inmate’s case” on remand even though the inmate sought permission to
participate in group worship); Haight, 763 F.3d at 563–64. Indeed, each plaintiff testified that he
was nonviolent and would prevent others from acting aggressively at group services. The
Department offered silence in response—it did not, for example, present any evidence that
plaintiffs or any other inmates who follow Christian Identity are violent. True, Bechler linked

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Christian Identity to racial violence outside the prison setting. But nothing in the record links
plaintiffs to any prison violence, racially motivated or otherwise. In short, the Department
presented evidence regarding Christian Identity as a whole, but not concerning plaintiffs. In
failing to conduct an individualized inquiry, the Department’s decision-making process was
deficient.
In an effort to counter these defects in its decision-making process, the Department
pushes back on a few fronts. It faults plaintiffs for failing to prove that Christian Identity was
not a security threat. But such an argument misconstrues the burden. Plaintiffs were not
required to offer any potential restrictions that could further the Department’s interest in facility
security; the burden to show that refusing to recognize Christian Identity was the least restrictive
(and given the denial at issue, the only) option to ensure facility security falls on the
Department’s—not plaintiffs’—shoulders. Ramirez, 142 S. Ct. at 1281.
The Department next contends Christian Identity is simply too dangerous to recognize.
In the Department’s view, recognizing Christian Identity would lead to an increase in racial
tension in its facilities because it cannot prevent nonwhites from attending Christian Identity
services. This concern appears to rely on an assumption that nonwhite inmates might “identify”
Christian Identity as their religion under the policy and attend Christian Identity services in bad
faith to increase racial tensions. Yet, the Department’s own policy tempers that fear by
restricting inmates to attending group religious services for only the one religion to which they
belong and limiting the changing of religion to no more than twice a year. All this means that an
inmate attending a Christian Identity service would not only need to change his religion, but he
would also be unable to attend services for his actual religion. The Department’s concerns,
therefore, are already mitigated by its policy, which, on its own terms, limits Christian Identity
services to those that actually practice the religion. This is not an inherently dangerous setup.
And the Department has not contradicted plaintiffs’ testimony that they would allow nonwhites
at their services and expel any attendees who were aggressive toward others.
As for Christian Identity’s connection to white supremacist groups outside the prison
setting, that alone cannot fulfill the least-restrictive-means analysis. Although the record links
Christian Identity to white nationalist groups, nothing in the record addresses how many

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Christian Identity adherents are members of those groups. The Department has the burden to
show that refusing to recognize Christian Identity is the least restrictive means to advance facility
security. Ramirez, 142 S. Ct. at 1281. It cannot meet that burden by simply gesturing toward
some Christian Identity adherents being members of white supremacist groups and rely on this
court to fill in the gaps. See Byrd, 17 F.4th at 699–700; Haight, 763 F.3d at 563–64.
Because the Department failed to conduct an individualized inquiry or consider
alternatives to refusing to recognize Christian Identity, the district court erred by granting
judgment in the Department’s favor.1
For these reasons, we reverse the district court’s judgment and remand for entry of
judgment in plaintiffs’ favor.
1Because the Department failed to show that it used the least restrictive means in deciding not to recognize
Christian Identity, we do not address whether doing so furthered a compelling government interest. We also dismiss
as moot plaintiffs’ motion to take judicial notice and decline to address their evidentiary concerns regarding the
admissibility of Bechler’s testimony.

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