From West v. Radtke, decided Sept. 16 by Chief Judge Diane Sykes joined by Judges Joel Flaum and Michael Brennan (reversing a decision I blogged about here):
Rufus West is confined at Wisconsin's Green Bay Correctional Institution where he must undergo strip searches by prison staff on regular occasions—namely, when he leaves and reenters the prison, during lockdowns, before and after visits from outsiders and certain other movements within the facility, and whenever directed by a prison supervisor. Under prison policy two guards participate in every strip search, one who directly performs it and another who observes to ensure that it is performed properly.
West is a Muslim. Strip searches by prison guards of the opposite sex violate the moral tenets of his faith, which prohibit him from exposing his body to a woman who is not his wife. { According to his Islamic beliefs, he is forbidden to expose his naked body to anyone but his wife. This precept compels him to shield the area between his naval and knees from others, especially from those of the opposite sex. Knowingly violating the nudity prohibition will condemn him in the afterlife, with greater condemnation resulting from cross-sex violations of the taboo.} In July 2016 he was required to submit to a strip search by a guard who is a transgender man—a woman who identifies as a man.
West objected on religious grounds but was refused an accommodation, and the transgender guard participated in the strip search as the observing officer. After this incident, West requested an exemption from future cross-sex strip searches. The warden denied the request and told West that he would be disciplined if he objects again….
West sued under RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000), through which Congress provided that prisons that receive federal funds "may not 'impose a substantial burden on the religious exercise' of an inmate unless it can prove that doing so 'is the least restrictive means of furthering [a] compelling governmental interest.'" (For more on RLUIPA and its relationship to RFRA and the history of the Free Exercise Clause precedents, see this post.) The court held that West had shown that the prison's actions imposed a substantial burden on his religious exercise:
