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02-4012 O’Bryan v. Bureau of Prisons

By: dmc-admin//November 17, 2003//

02-4012 O’Bryan v. Bureau of Prisons

By: dmc-admin//November 17, 2003//

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“Defendants concede that Wicca is a religion for purposes of the RFRA. Although the district court did not evaluate O’Bryan’s contentions (or his religious practices) under the RFRA, defendants contend that we need not remand for that purpose because it is ‘self-evident why PS 5360.08 states that casting spells is never authorized. If an inmate were to cast a spell on another inmate, for example, and the other inmate were to find out about it, a fight or other serious disruption could easily occur.’ This is not as self-evident as the Bureau of Prisons may believe; relying on other inmates’ reactions to a religious practice is a form of hecklers’ veto. The RFRA does not allow governments to defeat claims so easily. A governmental body that imposes a ‘substantial’ burden on a religious practice must demonstrate, and not just assert, that the rule at issue is the least restrictive means of achieving a compelling governmental interest. We cannot tell whether a limit on casting spells would ‘substantially’ burden O’Bryan’s religious activities, nor can we tell on this empty record whether ‘spells’ cast by Wiccans would cause problems. Wicca follows the principle that adherents must not harm others, which implies that they cast no curses or hex-like incantations ‘on’ others that might frighten or offend them. Thus it is premature to apply the RFRA’s standard to O’Bryan’s claims; that is a task for the district court in the first instance, and on a suitable record.”

Vacated and Remanded.

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Easterbrook, J.

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