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Navajo Prisoner Entitled to Venison, Colored Bandana: 7th Cir.

By Mark Wilson, Esq. on April 27, 2015 | Last updated on March 21, 2019

The Free Exercise Clause lets practitioners of Santeria in Florida ritually slaughter chickens, and lets a Muslim inmate have a half-inch-long beard.

Add David Schlemm to the list. He's a member of the Navajo tribe, imprisoned in Wisconsin, who wants to be able to practice certain religious rituals, namely eating venison and wearing a multicolored bandana while praying.

And you know what? The Seventh Circuit, led by Judge Frank Easterbrook, said OK.

Oh, Deer: Venison for Dinner

Caveat: It didn't say "OK." It did say Schlemm's arguments survive summary judgment. Schlemm wanted "game meat" included as part of the prison menu, or alternatively, that a source of game meat be made available to him to celebrate the Ghost Feast in the fall, just like other Navajo do.

The prison said no way -- even though it already makes dietary accommodations for Jewish prisoners during Passover and even makes "packets" available for Indian prisoners participating in monthly sweat lodge ceremonies. It also makes Kosher and Halal foods available year-round.

The district court said the lack of venison on the menu didn't impose a "substantial burden" on Schlemm's religious practice. Easterbrook put two recent decisions -- Holt v. Hobbs (the Muslim prisoner's beard) and Hobby Lobby -- to work to determine that a "substantial" burden is one that "seriously" impacts religious practice, but that's little more than substituting one meaningless phrase for another. Whatever the standard is (and even Easterbrook isn't sure), he notes that both circuit courts to address lack of access to "traditional" foods violates RLUIPA.

The prison's fallback position was the slippery slope: Suddenly, inmates are all going to get religion and "demand a religious diet that requires daily, person-specific preparation so expensive that in the aggregate the costs of compliance would be crippling and the need to avoid them 'compelling.'" That may well be true, but the prison hasn't estimated what it would cost to satisfy Schlemm's request, so its protestations are speculative at this point.

How Colorful

The headband issue seems even easier to solve; it doesn't involve the expenditure of money like the venison problem. Schlemm wanted to wear a multicolored headband while praying, but the prison only allows black and white clothing. While the prison of course advanced the claim that its rules prevent inmates from advertising gang affiliations, "[t]he prison system does not contend that any given gang's members are unaware of which other prisoners belong to the same gang" -- that is, there's no need to advertise.

What about advertising gang affiliation to non-members? First of all, he would wear the bandana only in his cell; and second, the colors -- "earth tones (such as blues and greens)" -- wouldn't be reasonably construed as being gang-related.

Schlemm doesn't win by any means, but the prison doesn't get to make claims unsupported by evidence. Perhaps after a trial and more discovery, but not at this point.

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