CIVIL NO. 95-0779





I. Preliminary Statement

Trial was held in this matter December 14 —15, 1999. By permission of the Court, the parties agreed to waive final oral argument and to submit written arguments in post-trial memoranda.

All factual issues pertaining to Plaintiffs' sincerity1 and their access to and possession of sacred items (including headbands, sage, sweetgrass, pipe, necklaces, etc.) have been resolved by agreement of the parties.2 Defendants dropped prior to trial any issue of Plaintiffs' ethnic identity.3

The only issues remaining in dispute are whether the Department of Correction (hereinafter "Department") refusal to permit a Native American Purification Lodge ceremony (also known as a "Sweat Lodge," hereinafter, "Lodge") is a "substantial burden" on Plaintiffs' exercise of their religion and, if so, whether it is justified as the "least restrictive means" to protect a "compelling state interest."4

II. The Massachusetts Constitution Strongly Protects Religious Freedom

Massachusetts has perhaps the highest standard of protection for religious freedom in the United States. At least five separate provisions of the Massachusetts Constitution Declaration of Rights address religious freedom, including one specifically enumerating protection for prison inmates.5

The Supreme Judicial Court has emphasized the strength of the Massachusetts Constitution in this regard, in comparison to the Constitution of the United States:

Article 46, s 1 ("No law shall be passed prohibiting the free exercise of religion") parallels the First Amendment to the Constitution of the United States ("Congress shall make no law ... prohibiting the free exercise of religion"). [citation omitted]
Despite the similarity of the two constitutional provisions, this court should reach its own conclusions on the scope of the protections of art. 46, s 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment. Indeed, … the Supreme Court substantially altered its standard for determining whether conduct was protected under the free exercise of religion clause by its decision in Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), a much criticized opinion that weakened First Amendment protections for religious conduct. Attorney General v Desilets, 418 Mass. 316, 320-321 (1994)

In 1993, to undo the effects of Employment Div v. Smith, supra, and two other Supreme Court decisions that reduced protection for prisoners,6 Congress passed the Religious Freedom Restoration Act, 42 U.S.C. sec's. 2000bb, et seq.,7 (hereinafter, "RFRA"). RFRA reinstated earlier standards of federal protection for religion that paralleled Massachusetts law. As the Desilets Court explained:

The standard that we apply appears to be the same as that prescribed by the Religious Freedom Restoration Act of 1993. 418 Mass. at 322.

Massachusetts law protecting religious freedom incorporates standards announced for federal law in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972):8

To determine whether a law that regulates conduct violates the free exercise clause, a court must apply a three-pronged test. A court must determine (1) whether the activity interfered with by the State is motivated by and rooted in a legitimate and sincerely held religious belief; (2) whether the parties' free exercise of religion has been burdened and the extent of the impact on their religious practices; and (3) whether the State has a compelling interest in the regulation which justifies that burden. See Wisconsin v. Yoder, 406 U.S. 205, 215-229 (1972); Sherbert v. Verner, 374 U.S. 398, 406-409 (1963). Attorney General v. Robert Bailey, 436 N.E.2d 139, 386 Mass. 367 (1982), cert. den., Bailey v. Bellotti, 459 U.S. 970 (1982).

After the demise of RFRA,9 Massachusetts and federal law on religious freedom again parted ways:10

The… principle of the Smith case [is] that "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Where, however, a law burdening religious practice is not neutral or is not of general application, that law must advance compelling interests and must be tailored narrowly in pursuit of those interests. Because this latter test states the standard that we apply under the State Constitution in all circumstances where a law burdens religion, we need not decide whether the law challenged in this case is neutral and of general applicability. Desilets, supra, 418 Mass. at 321, n. 4. [internal citations omitted, emphasis added]

Under the Massachusetts Constitution, this Court must determine whether the Department's prohibition of a Native American Purification Lodge ceremony "burdens" Plaintiffs' religion, and, if so, whether the regulation is designed to accomplish a "compelling state interest," and, if so, whether the regulation is the "least restrictive means" to accomplish that interest. Plaintiffs' claims under the Constitution of the United States are adjudicated under the lower standard of "reasonableness."

III. Denial of Lodge Substantially Burdens Native American Spirituality

The parties agree that the Lodge is of religious significance. The testimony of Plaintiffs and Plaintiffs' witnesses regarding the sacred character and central ceremonial significance of the Lodge in Native American spirituality is uncontradicted. Witnesses for the Plaintiffs testified that there is no substitute for the Lodge and that the characteristics of the Lodge uniquely provide key aspects of Native spiritual practice. One of Plaintiffs' witnesses, an expert in transpersonal psychotherapy who has worked with Native spiritual practices including the Lodge, testified that the Lodge ceremony would benefit Plaintiffs.11

The importance of the Lodge has been widely recognized in cases decided under both "compelling interest" and "reasonableness" standards.

We may take judicial notice of the central and fundamental role played by the Sacred Sweat Lodge in many Native American religions. Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir., 1995), cert. den., Thomas v. McCotter, 515 U.S. 1166 (1995), reh. den., Thomas v. McCotter, 515 U.S. 1183 (1995).12

There is substantial evidence in the record that the Lodge is a "core ceremony," akin to the Eucharist in Catholic faith or Jumu'ah in the Muslim faith. Justice Brennan, dissenting in O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987),13 supra, explained the "substantial burden" occasioned by denying such "core" ceremonies:

Jumu'ah … cannot be regarded as one of several essentially fungible religious practices. The ability to engage in other religious activities cannot obscure the fact that the denial at issue in this case is absolute: respondents are completely foreclosed from participating in the core ceremony that reflects their membership in a particular religious community. If a Catholic prisoner were prevented from attending Mass on Sunday, few would regard that deprivation as anything but absolute, even if the prisoner were afforded other opportunities to pray, to discuss the Catholic faith with others, and even to avoid eating meat on Friday if that were a preference. 482 U.S. at 360.

Courts applying the "compelling interest" standard have held that even a denial of practices less than central or core elements may constitute a "substantial burden" on spiritual freedom. Possession of sacred items, for example, is protected:

We recognize that religious symbols often play an important role in expressing an individual's adherence to a particular faith; possession of the symbol in and of itself manifests belief in one's religious creed. A prohibition against the possession of a medicine bag therefore could, for those faiths for whom the symbol has sufficient importance, qualify as a "substantial burden"…. Werner, supra, 49 F.3d at 1480.

Similarly, the Court in Lemay v. DuBois, 1996 U.S. Dist. (D. Ma.) LEXIS 11645, 1996 WL 463680, [copy attached hereto as Appendix] held that the Plaintiff

… demonstrated a likelihood of success on his claim that the permanent confiscation of his [Native American] necklace and medallion, hair tie, feathers, sage, and cedar constituted a substantial burden…. Id. At *22.14

In Alvarez, v. Flynn, Massachusetts Superior Court, Civil No. 95-0275B (July 6, 1995), the Court ruled:

Plaintiffs established … that the wearing of "sacramentals" is an important part of the practice of their religion. By prohibiting such conduct, defendants impose a substantial burden on Plaintiffs' exercise of religion. Id., Findings of Fact, Rulings of Law and Order for Judgment, Carhart, J., 5 [copy appended to Memorandum in Support of Plaintiffs' [First] Motion for Summary Judgment, filed August 30, 1995]

The Department's denial of the Lodge–a "central" or "core" ceremony in Native American spirituality--constitutes "interference with a tenet or belief that is central" to Plaintiffs' religious practice, Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir., 1995), imposing a substantial burden on Plaintiffs' exercise of their religion.

IV. Department Has Failed To Show Compelling Interest To Deny Lodge

Though the Court may grant that security is a central penological objective, statement of "a general objective which may be compelling is insufficient for purposes of the [compelling interest test]." Alvarez, supra, id. As the Alvarez Court continued:

Defendants concern for safety and security at the Jail is appropriate. However, defendants have failed to establish a connection between the institutional safety and security goals and the confiscation of articles with facially obvious religious significance. … Defendants' assertion that the seizure of religious articles in accordance with its policy and in furtherance of the safety and security goals is based on mere speculation at best. … Therefore, defendants have failed to sustain their burden of proving a compelling government interest. Alvarez, supra, at 6.

A. Conclusory Opinions Are Insufficient To Constitute Compelling Interest

Witnesses for the Department testified that "we don't want to take a chance" with the Lodge and that "in our opinion" the Lodge is a "security problem."

The law requires prison administrators to articulate security concerns with specificity. General allegations regarding prison security do not in themselves establish a "compelling interest":

While recognizing that the courts may not substitute their judgments for those of prison administrators in matters of prison procedure and management, it nonetheless remains true that the "asserted justification of such restrictions on religious practices based on the State's interest in maintaining order and discipline must be shown to outweigh the inmates' First Amendment rights," and "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."…We are of the opinion that the state must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health or safety in order to establish that its interests are of the "highest order." Weaver v. Jago, 675 F.2d 116, 119 (6th Cir., 1982) (quoting Kennedy v. Meacham, 540 F.2d 1057, 1061 (10th Cir., 1976).)15

Assertions of "opinion" by Department witnesses are not sufficient to sustain the substantial burden placed on Plaintiffs' exercise of religion:

Prison administrators cannot merely brandish the words "security" and "safety" and expect that their actions will automatically be deemed constitutionally permissible conduct. Indeed, "inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hac (sic) rationalizations will not suffice…." (citations omitted). Campos v. Coughlin, 854 F.Supp. 194, 207 (S.D. NY, 1994).

B. Trash Storage and Unsubstantiated Fire Danger Do Not Constitute Compelling Interest

Plaintiff's witnesses testified to the existence of a separately secured area within the inner perimeter of the prison yard and described the area as appropriate for a Lodge ceremony--which involves fire-heated rocks, water, and various sacred plants and takes place over a period of hours.

Plaintiffs testified that the separately secured area is used only for temporary storage of trash. This was corroborated by a Department witness, who described the use as convenient to the operation of the prison. The Department made no attempt to show that temporary trash storage is a "compelling state interest" of "the highest order" or even that temporary trash storage is "reasonably related to legitimate penological interests" under the more limited Turner standard.

A Department witness alleged the presence of wooden buildings in the prison yard and a consequent danger of fire. On cross-examination, however, this witness indicated that the wooden buildings are in a different section of the prison, separate from and at a considerable distance from the secured area.

In McKinney v. Maynard, 952 F.2d 350 (10th Cir., 1991),16 prison officials alleged that "constructing a sweat lodge would not meet the fire marshal's safety standards…." Id. at 352. The Court of Appeals held that the alleged concerns "do not categorically negate" the request for a Lodge. Id. at 354. McKinney was decided under the Turner standard of "reasonableness." Presumably, if fire danger is not per se sufficient justification to forbid a Lodge under that limited standard, it also fails under the higher standard of "compelling interest."

C. Other Alleged Security Concerns Are Not Supported By Evidence

Department witnesses asserted that security concerns arise from the fact that the Lodge is an enclosed structure during the ceremony, preventing observation by correctional personnel. These assertions were not buttressed by any specific evidence of actual security breaches at any prison where Lodges are permitted. Plaintiffs' and the Department both offered testimony about the existence of Lodges in other prison systems, including state and federal prisons in the United States and the Canadian prison system.

The Court's determination of the validity and significance of alleged security concerns may properly take into account experience and practices at other prison systems:

While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy …of the Federal Bureau of Prisons…. Procunier v. Martinez, 416 U.S. 396, 413-414 (1974), rev'd in part, Thornburgh v. Abbott, 490 U.S. 401 (1989).17

The record contains substantial detail about the operation of the Lodge in Connecticut prisons over a 17-year period. One of Plaintiffs' witnesses is a trained correctional officer in Connecticut who serves as a Native Chaplain in that system. He described the process by which institutional security is maintained during the Lodge ceremony, whether it is conducted by him or by outside volunteers. He further stated that the Lodge ceremony tends to reduce interpersonal tensions among inmates.

A Department witness also testified to personal knowledge of Connecticut policy and practice regarding the Lodge, but did not contradict the testimony of Plaintiffs' witnesses that security problems have not occurred with the Lodge in Connecticut.18 Two witnesses for Plaintiffs testified to their involvement with and knowledge of Lodges in federal prisons, all of which occur with appropriate security and without security breaches. Their testimony was not contradicted.

In short, without specific evidence of actual security problems and in the face of substantial evidence to the contrary in other well-run institutions, the Department's assertions of concern for security are insufficient to sustain its refusal to permit a Lodge in Massachusetts prisons.

D. Department's Refusal Fails Under Both Compelling Interest And Reasonableness Standards

The Department's generalized statements of concern–for fire, trash, and security–do not amount to a "compelling interest" that would sustain a total prohibition of the Lodge. Moreover, as the Court in Thomas v. Gunter, 32 F.3d 1258 (8th Cir., 1994), explained, such generalized statements also fail under the "reasonableness" standard:

[T]he question under Turner becomes whether the limitations on access to the sweat lodge are logically related to a legitimate penological objective. The appellees's (sic) simple and unelaborated assertion that decisions concerning access to the sweat lodge were made on the basis of "security- related limitations" gives us little basis upon which to determine if there was some rational relationship between the denial of access and security. 32 F.3d at 1260.

Both compelling interest and reasonableness standards call for more than speculation and assertions of possibilities. The record is replete with evidence that the Lodge ceremony may be conducted without jeopardizing penological goals, including security of the prison system. The evidence supports the conclusion that there is neither compelling interest to sustain a total prohibition of the Lodge ceremony nor a reasonable relation between such prohibition and the stated goal of prison security.

V. Prohibition of Lodge Is Not The Least Restrictive Means to Ensure Security

Assuming arguendo that the Department's concerns did amount to a compelling state interest, the Department has failed to show that a complete ban of the Lodge ceremony is the least restrictive means to protect that interest.

A bare assertion of "fire danger" is not sufficient to sustain a total ban on the Lodge. Fire danger may be obviated by the ready availability of water–which was testified to by Plaintiffs and the Department. A Department witness testified that fire hydrants exist throughout the institution. Plaintiffs' witnesses provided evidence that water is an essential part of the Lodge ceremony itself and must therefore be available at the site of the fire.

Furthermore, Department witnesses testified that open fires are sometimes constructed for officially sponsored barbecues near the wooden buildings. If the prison can accommodate fires for barbecues, it can accommodate fires to heat rocks for a Lodge.19

[A]gency interpretations of their own regulations are entitled to deference. However, "courts will not hesitate to overrule agency interpretation of rules when those interpretations are arbitrary, unreasonable, or inconsistent…." [citation omitted]. Manor v. Superintendent, 416 Mass 820, 824 (1994).20

There was no testimony that alternative temporary trash storage would require major logistical or financial arrangements. The fact that the Department may have to expend some effort in accommodating the Lodge is not a basis for denying Plaintiffs' religious expression.

We would … not readily subscribe to a rule that justified the denial of constitutional rights simply because the protection of those rights required special effort. Desilets, supra, 418 Mass. at 330.

Observation of Lodge participants may be accomplished by providing correctional officer training for a Native Chaplain and by other arrangements copied from well-run state and federal institutions where volunteers lead Lodge ceremonies. On cross-examination, a Department witness testified that the presence of a trained correctional officer as Native chaplain would resolve his security concerns. This witness further testified that there are several trained chaplains of other faiths at each institution, but no Native chaplain in the Massachusetts system.21

Even under the more limited standard of "reasonableness,"

[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response" to prison concerns. … if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard. Turner 482 U.S. at 90-91.22

Total prohibition of the Lodge is neither the least restrictive means of accomplishing the Department's goals, nor reasonably related to these goals, but is an "exaggerated response" to speculative fears and anxieties. As Werner, supra, stated:

Even under the… Turner standard, courts have acknowledged that the construction, maintenance, and use of a sweat lodge may not place an unreasonable burden upon prison officials. 49 F.3d at 1480.

VI. Conclusion

The Massachusetts Constitution requires the Department to demonstrate a compelling interest to sustain any regulation that substantially burdens inmate spiritual practice. If such interest exists, the law must be tailored narrowly to the least restrictive means. Attorney General v. Desilets, 418 Mass. 316, 321 (1994).

Where fundamental claims of religious freedom are at stake, the Court must examine the interests that the Department seeks to promote. Wisconsin v. Yoder, 406 U.S. 205 (1972), cited in Desilets, supra. 418 Mass. at 322. The Department must be able to show more than a speculative or possible state interest to meet the compelling interest test, for "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation [of religious freedom]". Sherbert v. Verner, 374 U.S. 398, 406 (1963), cited in Desilets, supra, 418 Mass. at 322.

The Department's denial of the Native American Purification Lodge ceremony prohibits conduct and expression that manifest a central aspect of Native spiritual practice, forcing Plaintiffs to refrain from activities that are fundamental to their beliefs.

The Department has not demonstrated a compelling interest to justify the substantial burden it places on Native American Indian spiritual practices by total denial of the Native American Purification Lodge ceremony. Nor has the Department shown a specific, valid, rational relationship between denial of the Lodge and a legitimate penological interest.

Although the practice of Native American traditional religion may not conform as neatly to those accommodations already provided in a prison setting, that, standing alone, neither renders the claim of a Native American worshipper frivolous nor terminates the responsibility of prison officials to consider some accommodation. McKinney v. Maynard, supra, 952 F.2d at 353.

The Commonwealth's Declaration of Rights "preceded and is independent of the Constitution of the United States." Commonwealth v. Upton, 394 Mass. 363, 372 (1985). "Moreover, the Supreme Judicial Court has also recognized that the Constitution of the Commonwealth grants rights to prisoners which exceed the protections guaranteed in the Bill of Rights." Manor v. Rakiey, 2 Mass. L. Rptr. 506 (1994).

[Prison officials] must show that a regulation … furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction … that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. Champagne v. Commissioner, 395 Mass. 382, 391 (1985) [quoting Procunier v. Martinez, supra, 416 U.S. at 413].23

The burden placed on religious exercise in this case also violates the special policy of the United States to protect and preserve Native American religious freedom. American Indian Religious Freedom Act, 42 U.S.C. sec. 1996.

WHEREFORE, Plaintiffs pray this Court

1. Enter declaratory judgment and injunction that the Department of Correction make available to members of the Native American Spiritual Awareness Council a secure area and means for conducting the Native American Purification Lodge ceremony.

2. Enter declaratory judgment and injunction that Plaintiffs' possession of sacred items (including headbands, sage, sweetgrass, pipe, necklaces, etc.) be protected according to the agreement between the parties under the terms of the Preliminary Injunction previously issued and the Department's Religious Services Handbook.

3. Enter declaratory judgment and injunction that participation in the Native American Spiritual Awareness Council shall not be abridged by the Department on account of race or ethnicity, or otherwise except for specific security concerns.

4. Award reasonable attorneys' fees pursuant to G.L. c. 93, sec. 102; G.L. c.12, sec. 11I; and 42 U.S.C. sec. 1988.

5. For such other and further relief as the Court deems just and equitable.


Dated: 12 January 2000

By Their Attorneys,


Robert T. Doyle, Jr.

Peter P. d'Errico


1. Defendants stipulated to Plaintiffs' sincerity of belief on the second day of trial. Sincerity is a threshold issue in religious freedom cases. See Attorney General v. Bailey, 386 Mass. 367 (1982). See also Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972), discussing interdependence of "religious faith" and "way of life." See also Attorney General v Desilets, 418 Mass. 316, 323 (1994): "Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants' assertions regarding what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual."

2. Issues pertaining to sacred items were resolved in a pre-trial conference, at which the parties agreed as follows: "1. Defendants Lawrence DuBois, John Marshall, P. J. Chalapatas, and Michael Dorion (the "Defendants") shall permit the use of headbands by plaintiffs Randall Shield Wolf Trapp, William Whitefeather Durfee, James Crow Feather Manley, Bernard R. Bailey, Sr., and Christopher Bousquet to the extent they are needed as part of the ceremonial items used by members of the Prayer Circle. Headbands shall be treated similarly to all other sacred items, as set forth in the Handbook, for purposes of handling and storage. 2. Defendants shall permit, absent specific security concerns, individual inmates future participation in the Native American Spiritual Awareness Council." This agreement is rooted in the Preliminary Injunction issued by this Court in this matter and incorporates by reference the Massachusetts Department of Correction Religious Services Handbook, dated April, 1999.

3. The Preliminary Injunction issued by the Court was in large part aimed at Defendant Marshall's imposition of ethnic criteria on inmate eligibility to practice Native American spirituality. Courts have specifically criticized such imposition. See Combs v. Correction Corp. of America, 977 F.Supp. 799, 802 (W.D. La., 1997) ["[R]estricting the practice of the Native American Religion only to those prisoners of Native American ancestry ... offends the fundamental constitutional right to practice religion of one's choice."] and U.S. v. Boyll, 774 F.Supp. 1333, 1340 (D. NM, 1991), app. dism'd. 968 F.2d 21 (10th Cir., 1992) ["[T]here can be no more excessive entanglement of Government with religion than the Government's attempt to impose a racial restriction to membership in a religious organization. The decision as to who can and who cannot be members of the Native American Church is an internal church judgment which the First Amendment shields from governmental interference."]

4. The parties are in agreement that this is the standard to be applied (See pre-trial conciliation memoranda, filed May 14, 1968). This is the standard announced in the Court's prior rulings in this case. See Memorandum and Order on Plaintiffs' Motion for Partial Summary Judgment, Travers, J., February 26, 1996; Order on Plaintiffs' Motion for Summary Judgment, Bohn, J., February 27, 1998. Nonetheless, Plaintiffs include herein argument that the Department's refusal also fails under the weaker 'reasonableness' standard in federal law applying to Plaintiffs' claims under the United States Constitution.

5. The provisions are Articles (as amended) II (right and duty of worship), III (protection of religious societies), XVIII (free exercise, including section 4 regarding inmates), XLV (absentee voting on religious holidays), and 48, section 2 (prohibiting referenda and initiative petitions on religious matters). In addition, the old requirement that the governor profess Christianity has been abolished. Specific statutory protection for inmate religious freedom also exists, G.L. 127, sec. 88.

6. Turner v. Safley, 482 U.S. 78 (1987) and O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987). The Turner rule is that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. Turner upheld restrictions on inmate mail, but overturned a ban on inmate marriage, in part on the ground that "marriage may be an exercise of religious faith." 482 U.S. at 96. O'Lone applied Turner to hold that a rule preventing Muslim inmates working outside the main building from attending weekly congregational service inside did not violate the First Amendment's free exercise of religion clause.

7. Section 3 of the Act provided as follows: "FREE EXERCISE OF RELIGION PROTECTED. (a) IN GENERAL. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b); (b) EXCEPTION. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." The statute extended to actions involving prisoners, 42 U.S.C. sec's. 2000bb-1(a), 2000b-2(1). Legislative history shows that both Senate and House considered and rejected an exception to the Act for inmates' claims, S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993), H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).

8. Sherbert v. Verner held that a statute precluding a Seventh Day Adventist from receiving unemployment benefits because she would not work on her Sabbath violated her free exercise of religion. Wisconsin v. Yoder held that a state's mandatory education requirement as applied to Amish children violated their free exercise of religion. The Court struck down both statutes under the "compelling interest, least restrictive means" test.

9. City of Boerne v. Flores, 521 U.S. 507 (1997), declared RFRA unconstitutional, thereby returning federal law to the lower standard of "reasonableness" set forth in Employment Div. v. Smith, Turner, and O'Lone, supra.

10. Turner has been relied upon in Massachusetts courts in two reported cases not involving religious freedom. In Cacicio v. Secretary, 422 Mass. 764 (1996), the Court upheld prison telephone regulations in the face of inmate speech and privacy challenges. The Court specifically excluded from consideration alleged religious freedom issues. 422 Mass. at 768, n9. In Lovell v. Superintendent, 26 Mass.App.Ct. 35 (1988), the Court reversed summary dismissal of an inmate challenge to a ban on nude photos and remanded for consideration of the 'reasonableness' of the ban.

11. Compare Indian Inmates v. Gunter, 660 F.Supp. 394, 395 (D. Neb., 1987), aff'd, SapaNajin v. Gunter, 857 F.2d 463 (8th Cir., 1988): "The sweat lodge a preparation for all other rites as well as a rite in itself. During sweat lodge ceremonies, participants experience physical and spiritual purification and are 'reborn' into harmony through the use of gifts from the helpers and powers that aid in prayer to the great mystery. Participants in the sweat lodge experience expanded spiritual and cultural understanding, feel more in harmony with life, gain increased wisdom, and are better able to follow the good red road. Elizabeth Grobsmith, an expert on the plains Indians, testified that there is support in the literature for the rehabilitative effects of sweat lodge ceremonies...."

12. In Werner, plaintiff sought access to a sweat lodge, possession of a medicine bag, access to a Native American Spiritual Advisor and to religious literature, and possession of various religious symbols (including, inter alia, a hawk feather and a crystal amulet). See also Reinert v. Haas, 585 F.Supp. 477, 480 (S.D. Ia., 1984) [Lodge "an absolutely essential part of worship"]; Allen v. Toombs, 827 F.2d 563 (9th Cir., 1987) [weekly access to Lodge allowed for general prison population; inmates in disciplinary segregation denied]; Indian Inmates v. Gunter, supra, note 11 [Lodge access allowed for general population; denied to protective custody inmates]; Thomas v. Gunter, 32 F.3d 1258 (8th Cir., 1994) [weekend and holiday access to Lodge; daily access denied]; Thomas v. Gunter, 103 F.3d 700 (8th Cir., 1997) [Lodge permitted 2-5 times weekly; daily access denied]; Bear v. Nix , 977 F.2d 1291 (8th Cir., 1992) [individual access to Lodge improperly denied] ; see also Mathes v. Carlson, 534 F.Supp. 226 (E.D. Mo., 1982) [Lodge issue moot because instituted]; McKinney v. Maynard, 952 F.2d 350, 354 (10th Cir., 1991) [fire and security concerns "do not categorically negate" request for Lodge]. See also Elizabeth S. Grobsmith, Indians in Prison (Lincoln: University of Nebraska Press, 1994) ["Attending sweat ceremonies has become the single most important and widespread religious activity among Native American prisoners in the United States...." Id. at p. 49.]

13. RFRA "was designed to overrule the Supreme Court's decision in O'Lone v. Estate of Shabazz." Rust v. Clarke, 851 F.Supp. 377, 380 (D. Neb., 1994).

14. The opinion in Lemay contains an extended discussion of "the proper definition of 'substantial burden.'" Id. at *20-*22.

15. In Weaver, a prisoner subjected to disciplinary action for failure to have his hair cut in conformity with prison regulations, who alleged he subscribed to Cherokee religious belief that cutting of his hair would indicate disgrace, humiliation or death in his family, was held to have a claim that his First Amendment right to freedom of religious expression was violated. Weaver was quoted approvingly in House and Senate reports of RFRA as an authoritative statement of the "compelling interest" standard. S. Rep. No. 103-111, H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).

16. Overruled in part, to the extent that McKinney held that the pre-parole, parole, or supervised release status of a former inmate seeking injunctive relief relating only to prison conditions saves that claim from dismissal on mootness grounds. McAlpine v. Thompson, 187 F.3d 1213, 1215-1216 (10th Cir., 1999).

17. Thornburgh, involving receipt of subscription publications by federal prison inmates, partially overruled Martinez to the extent that the latter applied a standard of "heightened scrutiny" rather than the Turner "reasonableness" test. Martinez was otherwise unaffected. The holding in Turner itself was based on evidence at other institutions: "[T]here are no obvious, easy alternatives to the policy adopted by petitioners. Other well-run prison systems, including the Federal Bureau of Prisons, have concluded that substantially similar restrictions on inmate correspondence were necessary...." And, "[T]he...rule is consistent with the practice of other well-run institutions, including institutions in the federal system." Turner v. Safley, supra, 482 U.S. at 93, 94.

18. The Department witness asserted that the Connecticut institutions were "built to be prisons," but this was not elaborated with regard to any specific penological concern. To the extent this testimony was intended to imply security concerns, it was contradicted by the Department's own evidence that the prison at NCCI, Gardner, has substantial security infrastructure. Further, the good-faith of this testimony is undercut by admission of the witness on cross-examination that the Department has not studied the feasibility of a Lodge at any of the nearly twenty institutions in Massachusetts "built to be prisons."

19. Compare Pedro v. Murphy, Suffolk No. 94- 3724C, 1998 WL 59483 (Mass.Super.) [inmate telephone use]:"[D]efendants ... provide any particulars or concrete information such as would indicate that permitting such [telephone] calls is not technologically feasible." The Department has failed to show that a Lodge fire is "not technologically feasible."

20. Federal cases decided before the Turner dilution of the First Amendment are in accord. "A prison regulation concerning the exercise of religion that is more restrictive than necessary to meet the penal system's objectives is impermissible under the free exercise of religion clause of the First Amendment." Native American Council of Tribes v Solem, 691 F.2d 382, 385 (8th Cir., 1982) [allegations that Christian inmates were allowed to have their families and friends participate in religious services, but that Native American inmates' families and friends were not allowed held to state a claim for violation of equal protection.]. See also Gallahan v Hollyfield, 516 F.Supp. 1004 (E.D. Va., 1981), affd. 670 F.2d 1345 (4th Cir., 1982) [regulation which required Cherokee prisoner to have his hair cut, despite religious beliefs requiring wearing of long hair, held to constitute a violation of the First Amendment, on grounds that asserted prison security reasons were "either overly broad or lacking in substance." 670 F.2d at 1346].

21. The failure of the Department to provide even one Native Chaplain raises a serious question of discrimination among faiths. See Cruz v. Beto, 405 U.S. 319, 321 (1972): "If [a Buddhist prisoner] was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the state against the Buddhist religion...." See also Lemay v. DuBois, supra (prohibiting discrimination between Christian and Native religions).

22. Four considerations were identified in Turner as relevant to "reasonableness": (1) Is there a valid, rational connection between the regulation and the governmental interest put forward to justify it, and is the governmental interest legitimate and neutral; (2) do alternative means of exercising the challenged right remain open to inmates; (3) will accommodating the challenged right have a significant "ripple effect" on guards, other inmates, and the allocation of prison resources in general; and (4) does an alternative to the regulation exist which would fully accommodate the inmates' rights at de minimis cost to valid penological interests? Turner v. Safley, supra, U.S. at 89-91.

23. Champagne relied on the "heightened scrutiny" test in Martinez, which was overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989), in favor of the Turner "reasonableness" test. As the Supreme Judicial Court stated in Desilets, supra, "[T]his court should reach its own conclusions on the scope of the protections of art. 46, s 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment." 418 Mass. at 321.