Virginia prison officials can no longer decide whether the food provided to an incarcerated person with religious dietary restrictions is “kosher enough” to meet that inmate’s religious beliefs, under a recent ruling by the Western District of Virginia. That determination instead must be based on the individual’s sincere religious beliefs.

In an important religious rights case, a Morrison & Foerster legal team secured a favorable outcome for pro bono client Bruce Estes, a Jewish man who is incarcerated in a Virginia state prison. The case analyzed whether a so-called common-fare menu for inmates with religious dietary restrictions is acceptable for someone with Mr. Estes’ religious beliefs, which require him to adhere to a kosher diet. Evidence in the case showed that the food for the common-fare menu was not always obtained from kosher sources, and its preparation was not supervised by a rabbi or otherwise consistent with the kosher requirements of Mr. Estes’ beliefs. Regardless, the state maintained that the common-fare menu was effectively “kosher enough” and refused to do more because of cost concerns.

On June 5, 2018, the United States District Court for the Western District of Virginia determined that the Virginia Department of Corrections violated the Religious Land Use And Institutionalized Persons Act by failing to provide Mr. Estes with kosher food.

“This case outcome is particularly noteworthy,” said Morrison & Foerster litigation partner and lead counsel in the case, Joel Haims. “Unlike prior kosher food cases, the issue here was not whether the state has to provide kosher food but rather who gets to decide what is kosher and acceptable to someone with Mr. Estes’ sincerely held religious beliefs.”

“Ultimately, the court ruled that this determination must be made on the basis of the inmate’s sincere religious beliefs rather than the state’s view of what those beliefs require,” he added.

The court found that Virginia’s refusal to provide Mr. Estes with kosher food compliant with his beliefs was a substantial burden on his religious exercise, and that even if costs were a compelling governmental interest, the state had not met its burden of showing that the common-fare meal program is the least restrictive means of accommodating that interest.

The MoFo team representing Mr. Estes in the case included: Joel Haims, Steve Rappoport, Cynthia Akatugba, Francesca Cocuzza, Ben Smiley, and paralegals Liz Mardeusz and Lisa Harger.

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