                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3572
JERRY CHARLES,
                                           Plaintiff-Appellee,
                              v.

RICHARD J. VERHAGEN and
MATTHEW J. FRANK,
                                      Defendants-Appellants,
                             and


UNITED STATES OF AMERICA,
                                                   Intervenor.
                        ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 01 C 253—Barbara B. Crabb, Chief Judge.
                        ____________
    ARGUED MAY 15, 2003—DECIDED OCTOBER 30, 2003
                    ____________


 Before BAUER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
  BAUER, Circuit Judge. Plaintiff Jerry Charles, a Muslim
inmate, filed an action against officials with the Wiscon-
sin Department of Corrections’ Division of Adult Institu-
tions (collectively, “DOC”), alleging separate violations
of his First Amendment right to the free exercise of reli-
gion as well as the Religious Land Use and Institution-
2                                                  No. 02-3572

alized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a),
because DOC officials prohibited him from possessing
Islamic prayer oil in his cell and from celebrating more
than one religious feast per year. The district court
granted summary judgment in favor of the DOC on both
of Charles’ First Amendment claims and on his religious-
feast claim under RLUIPA.
  The court, however, held that the DOC violated RLUIPA
by refusing to allow Charles to possess a reasonable
quantity of prayer oil but reserved judgment on the DOC’s
constitutional challenge to RLUIPA in order to allow the
United States to intervene and defend the statute. Follow-
ing intervention by the United States, the district court
held that RLUIPA was a constitutional exercise of Con-
gress’ power under the Spending Clause and that it did
not violate the Tenth Amendment or the First Amend-
ment’s Establishment Clause. As a result, the court en-
tered summary judgment in favor of Charles on his prayer
oil claim under RLUIPA. We affirm.


                      BACKGROUND
   Charles is a practicing Muslim inmate at the Oshkosh
Correctional Institute, a medium-security prison operated
by the DOC. According to Muslim practices, Charles prays
five times a day and undergoes ritual cleansing or puri-
fication, in part to eliminate offensive body odors prior to
prayer.1 This ritual cleansing often involves the applica-
tion of fragrant prayer oil. In April 2001, the DOC imple-
mented two, revised Internal Management Procedures




1
  Apart from its religious implications, this strikes us as a
good thing for all involved in the prison setting—or indeed, any-
where else.
No. 02-3572                                                     3

(“IMPs”), #6 and #6A.2 These IMPs addressed “Religious
Beliefs and Practices” and “Religious Property,” respec-
tively.
  IMP #6 identified seven “umbrella religion groups”
(including Protestant, Muslim, Native American, Catholic,
Jewish, Buddhist, and Wiccan) and established procedures
and guidelines for each group. IMP #6A addressed the
quantity and type of religious property that each inmate
could possess in DOC institutions and listed specific,
approved items for each umbrella religion group. Inmates
purchase religious and other personal property with
personal funds, managed by the correctional institution
in which the inmate is being held. IMP #6A lists religious
books and publications, prayer beads, a prayer rug, and a
kufi cap as approved items for Muslim inmates but does
not list Islamic prayer oil. DOC officials, therefore, prohib-
ited Charles from possessing any such oil, though other
kinds of fragrant body oils and lotions were made avail-
able to inmates.
  The DOC received approximately 14.5 million federal
dollars in fiscal year 2001, which comprised roughly 1.6% of
DOC’s annual budget, none of which was directed to
religious programs. Each time an inmate seeks to purchase
a personal property item, the DOC must follow extensive
bureaucratic procedures. These procedures are designed
to ensure that the requested item is permissible; not a
security threat; properly ordered, received, and inventoried
by various prison officials; and delivered undamaged to


2
   The DOC claims that severe overcrowding and a quadrupling
of the State’s prison population over the last twenty years, forc-
ing approximately 4,000 inmates to be placed in out-of-state
contract bed facilities, contributes to the difficulties of prison
management and necessitates streamlined procedures for han-
dling things such as inmates’ personal property. Hence, the DOC
revised IMPs #6 and #6A.
4                                              No. 02-3572

the inmate upon receipt at the correctional institution or
following an inmate’s transfer between DOC facilities.
According to the DOC, in developing IMP #6A, DOC
officials consulted and conducted research with religious
leaders in order to identify specific, allowable religious
property and to create fairness among religious faiths.
  Congress enacted RLUIPA following the Supreme Court’s
decision in City of Boerne v. Flores, 521 U.S. 507 (1997),
which struck down the Religious Freedom Restoration Act
of 1993 (“RFRA”), 42 U.S.C. § 2000bb to 2000bb-4, under
the Fourteenth Amendment insofar as it applied to states
and localities. Similar to RFRA, Congress enacted RLUIPA,
in part, to protect inmates and other institutionalized
persons from substantial burdens in freely practicing their
religions. Specifically, RLUIPA provides that,
    No government shall impose a substantial burden on
    the religious exercise of a person residing in or con-
    fined to an institution, as defined in section 1997 of
    this title, even if the burden results from a rule of
    general applicability, unless the government demon-
    strates that imposition of the burden on that person—
       (1) is in furtherance of a compelling governmental
       interest; and
       (2) is the least restrictive means of furthering that
       compelling governmental interest.
42 U.S.C. § 2000cc-1(a) (2000).
  Rather than rely on the Fourteenth Amendment, Con-
gress invoked the Spending and Commerce Clauses and
hinged the applicability of RLUIPA on whether: “(1) the
substantial burden is imposed in a program or activity
that receives Federal financial assistance; or (2) the
substantial burden affects, or removal of that substan-
tial burden would affect, commerce with foreign nations,
among the several States, or with Indian tribes.” 42 U.S.C.
No. 02-3572                                                  5

§ 2000cc-1(b). If the sole basis for the applicability of
RLUIPA rests in the Commerce Clause power, a defendant
can assert an affirmative defense that RLUIPA is inap-
plicable if the burden at issue “would not lead in the
aggregate to a substantial effect on interstate commerce.”
42 U.S.C. § 2000cc-2(g). Finally, RLUIPA creates a pri-
vate right of action for individual prisoners and grants
the United States power to enforce the statute through
injunctive or declaratory relief. 42 U.S.C. § 2000cc-2(a), (f).


                        ANALYSIS
  We undertake a de novo review of the district court’s
grant of summary judgment in favor of Charles, because
the parties do not dispute any material facts and present
only questions of law for our consideration. O’Kane v. Apfel,
224 F.3d 686, 688 (7th Cir. 2000). Rather than argue the
merits of Charles’ prayer oil claim under RLUIPA, the DOC
urges this Court to determine that Congress’ enactment
of RLUIPA runs afoul of its Spending and Commerce
Clause powers, the Tenth Amendment, and the Establish-
ment Clause of the First Amendment. We review each
claim in turn.


  A. Spending Clause Authority
  As a starting point, we note that the parties do not
dispute that if RLUIPA is constitutional it would apply
in this case because the DOC receives federal funding. 42
U.S.C. § 2000cc-1(b). The United States Constitution gives
Congress the power to “lay and collect Taxes, Duties,
Imposts, and Excises, to pay the Debts and provide for the
Common Defence and general Welfare of the United
States.” U.S. CONST. art. I, § 8, cl. 1. The Supreme Court
has held that Congress may attach conditions to the re-
ceipt of federal money incident to its Spending Clause
6                                                 No. 02-3572

power. South Dakota v. Dole, 483 U.S. 203, 206 (1987).
These conditions may be imposed in order to further
broad policy objectives, but Congress’ power is not unlim-
ited. Id. at 206-07.
  First, under the plain language of the Constitution, use
of the Spending power must be in pursuit of “the general
Welfare.” U.S. CONST. art. I, § 8, cl. 1; Dole, 483 U.S. at 207.
Courts should defer substantially to Congress’ determina-
tion as to what lies within the general welfare. Dole, 483
U.S. at 207. Second, “if Congress desires to condition the
States’ receipt of federal funds, it ‘must do so unambigu-
ously . . ., enabl[ing] the States to exercise their choice
knowingly, cognizant of the consequences of their participa-
tion.’ ” Id. Third, any conditions attached to federal fund-
ing must be related to a federal interest. Id. And fourth,
“other constitutional provisions may provide an inde-
pendent bar to the conditional grant of federal funds.” Id.
at 208.


    1. Pursuit of the general welfare
  The Court of Appeals for the Ninth Circuit recently held
that RLUIPA satisfies the first part of the Dole test in that
Congress’ attempt to protect prisoners’ religious rights is
in line with the protections afforded by the Constitution
through the First Amendment’s Free Exercise Clause.
Mayweathers v. Newland, 314 F.3d 1062, 1066-67 (9th Cir.
2002). RLUIPA follows in the footsteps of a long-stand-
ing tradition of federal legislation that seeks to eradicate
discrimination and is “designed to guard against unfair
bias and infringement on fundamental freedoms.” Id. at
1067 (citing to Titles VI and VII of the Civil Rights Act
of 1964, which protect against numerous forms of dis-
crimination in any program receiving federal financial
assistance and in employment, respectively, and citing
to Title IX, which sought, in part, to eliminate gender
No. 02-3572                                              7

inequities in education). Given the Supreme Court’s di-
rective to defer substantially to Congress’ judgment, we
agree with the Ninth Circuit that RLUIPA’s attempt to
protect prisoners’ religious rights and to promote the
rehabilitation of prisoners falls squarely within Congress’
pursuit of the general welfare under its Spending Clause
authority.


 2. Unambiguous conditions
  The second part of the Dole test requires that Congress
make unambiguous the presence of any conditions at-
tached to the receipt of federal funds. Dole, 483 U.S. at
207. Under the plain language of RLUIPA, Congress
conditioned the receipt of federal money upon States
refraining from creating substantial burdens on prisoners’
religious rights that are not justified by a compelling
governmental interest and are not furthered by the least
restrictive means possible. 42 U.S.C. § 2000cc-1(a). The
Supreme Court has directed that “[t]he crucial inquiry,
however, is . . . whether Congress spoke so clearly that
we can fairly say that the State could make an informed
choice.” Pennhurst State Sch. and Hosp. v. Halderman, 451
U.S. 1, 25 (1981). As the Mayweathers court noted,
   Congress is not required to list every factual instance
   in which a state will fail to comply with a condition.
   Such specificity would prove too onerous, and perhaps,
   impossible. Congress must, however, make the exis-
   tence of the condition itself—in exchange for the re-
   ceipt of federal funds—explicitly obvious.
Mayweathers, 314 F.3d at 1067. Thus, the exact nature of
the conditions may be “largely indeterminate,” provided
that the existence of the conditions is clear, such that
States have notice that compliance with the conditions is
required. Id. (citing Pennhurst, 451 U.S. at 24-25).
8                                               No. 02-3572

  The DOC argues that RLUIPA’s conditions are ambigu-
ous because the statute employs a “least restrictive means”
test. According to the DOC, Pennhurst stands for the
proposition that the least restrictive means test is too
indefinite a standard under which to impose conditions
upon the receipt of federal funding. In other words, there
is too much guesswork involved.
  The DOC’s reading of Pennhurst, however, is not one
we are willing to adopt. At issue in Pennhurst was wheth-
er the Developmentally Disabled Assistance and Bill of
Rights Act of 1975, 42 U.S.C. § 6000 et seq., had as a
condition of accepting federal funding the requirement
that States provide “appropriate treatment” to disabled
residents in the “least restrictive environment.” Pennhurst,
451 U.S. at 18. The lower courts had held that the stat-
ute created substantive rights in favor of residents to
receive that type of treatment. Id. The Supreme Court
found otherwise, concluding that language regarding
“appropriate treatment” and the “least restrictive environ-
ment” merely reflected Congress’ justification, or policy
goals, for appropriating federal money to the States through
the Act, not conditions associated with the receipt of fed-
eral funds. Id. at 19, 23. Further, other portions of the Act
more clearly spelled out the conditions attached to the
receipt of federal funding than the language at issue in
Pennhurst. Id. at 23. Accordingly, the Court stated that
it “strains credulity” to argue that States should have
known of the supposed obligations imposed by Congress
for which the disabled residents were arguing. Id. at 25.
  As for RLUIPA, we find that Congress clearly and
unambiguously attached conditions to the acceptance
of federal funding for prisons, and that the State of Wis-
consin, particularly the DOC, was put on notice of those
conditions. As the Mayweathers court noted, Congress
cannot delineate every instance in which a State may
or may not comply with the least restrictive means test; it
No. 02-3572                                               9

is simply impossible to do. There are far too many circum-
stances affecting the States in different ways for Congress
to have envisioned all aspects of compliance and noncompli-
ance. Rather, Congress permissibly conditioned the re-
ceipt of federal money in such a way that each State is
made aware of the condition and is simultaneously given
the freedom to tailor compliance according to its particular
penological interests and circumstances. If the DOC
objected to the imposition of the least restrictive means
test, it certainly could have refused federal funding.


  3. Conditions must be related to a federal interest
  The Dole Court’s third requirement is that any condi-
tions attached to federal funding be related to a federal
interest. New York v. United States, 505 U.S. 144, 167
(1992); Dole, 483 U.S. at 207. We discussed above the
relationship between RLUIPA and Congress’ pursuit of
the general welfare and pause here to note again how
that relationship contributes to the third Dole factor.
Congress has an interest in allocating federal funds to
institutions that do not engage in discriminatory behav-
ior or in conduct that infringes impermissibly upon individ-
ual liberties. In the context of protecting prisoners’ reli-
gious rights, Congress also seeks to promote the rehabili-
tation of prisoners, a process in which religion can play
an important role. Mayweathers, 314 F.3d at 1067; see also
Freedom from Religion Found., Inc. v. McCallum, 324
F.3d 880, 882, 883-84 (7th Cir. 2003) (noting importance
of religion to the rehabilitation of some substance abusers
in rejecting an Establishment Clause challenge to Wiscon-
sin’s use of faith-based halfway house for parolees).
  The DOC argues that the conditions imposed by RLUIPA
cannot be related to a federal interest because the DOC
does not allocate any of its federal funding specifically to
religious programs in prisons and because federal funds
10                                               No. 02-3572

comprise roughly 1.6% of the DOC’s annual budget. Those
arguments are misplaced. First, the Supreme Court’s
decision in Dole upheld the conditioning of federal high-
way funding upon a State establishing a minimum drink-
ing age. Dole, 483 U.S. at 208. Indeed, a minimum drink-
ing age requirement and federal highway funds shared
the same goal—interstate travel safety. Id. Likewise, the
goal of federal corrections funding and the conditions
imposed by RLUIPA, with respect to the protection of
prisoners’ religious rights, share the goal of rehabilitation.
That the DOC does not allocate federal funding specifi-
cally to religious programs is of no moment. Second, the
cases to which the DOC cites in support of its argument
that it receives too little federal money to be bound by
the conditions of RLUIPA are inapposite; they do not
even concern the Spending Clause. Nothing within Spend-
ing Clause jurisprudence, or RLUIPA for that matter,
suggests that States are bound by the conditional grant
of federal money only if the State receives or derives a
certain percentage (and, according to the DOC, an amount
substantially higher than the 14.5 million dollars it re-
ceived in 2001) of its budget from federal funds. If a
State wishes to receive any federal funding, it must accept
the related, unambiguous conditions in their entirety.
Accordingly, we find that the conditions imposed by
RLUIPA are properly related to an important federal
interest.


  4. Independent Constitutional bar
  The final part of the Dole test recognizes that “other
constitutional provisions may provide an independent
bar to the conditional grant of federal funds.” Dole, 483
U.S. at 208. The DOC’s remaining arguments are that
RLUIPA violates Congress’ Commerce Clause authority, the
Tenth Amendment, and the Establishment Clause. Be-
No. 02-3572                                                  11

cause we find that RLUIPA is valid under the Spending
Clause, we need not involve ourselves in arguments con-
cerning the Commerce Clause. Whether or not the Com-
merce Clause provides an independent justification for
RLUIPA does not impact its constitutionality under the
Spending Clause. Accordingly, the Commerce Clause could
not provide an independent bar to the enactment of
RLUIPA.3
  Similarly, when Congress engages in a constitutional use
of its delegated Article I powers, the Tenth Amendment
does not reserve that power to the States. U.S. CONST.
amend. X; New York, 505 U.S. at 156; United States v.
Wilson, 159 F.3d 280, 287 (7th Cir. 1998). In other words,
the Tenth Amendment does not restrict the range of
conditions Congress can impose on the receipt of federal
funds, even if Congress could not achieve the goal(s) of
those conditions directly. Dole, 483 U.S. at 210. The Su-
preme Court’s reference to an independent constitutional
bar “stands for the unexceptionable proposition that the
power may not be used to induce the States to engage in
activities that would themselves be unconstitutional.” Id.
The DOC’s final hope, therefore, is that we find that
RLUIPA violates the First Amendment’s Establishment
Clause, thereby providing an independent bar to RLUIPA’s
conditions.



3
  We further note, though no party mentioned this fact, that
the DOC admitted to sending approximately 4,000 of its inmates
to out-of-state facilities because of overcrowding. The DOC does
not contend, nor would we expect, that IMPs #6 and #6A do not
apply to these inmates simply because they are housed out of the
state. That fact, in our view, lends validity to RLUIPA’s con-
stitutionality under the Commerce Clause in this case. The DOC
certainly engages in interstate commerce to properly handle
the requests for religious and other personal property from
inmates housed outside Wisconsin.
12                                              No. 02-3572

  B. Establishment Clause Violation
  The Establishment Clause provides that, “Congress shall
make no law respecting an establishment of religion.” U.S.
CONST. amend. I. The Supreme Court developed a three-
part test in order to discern whether Congress has vio-
lated the Clause: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion;
finally, the statute must not foster ‘an excessive govern-
ment entanglement with religion.’ ” Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971). The DOC argues that RLUIPA
violates only the second part of the Lemon test in that the
statute impermissibly exalts religion by creating a right
for religious prisoners that is not needed to remove a
Free Exercise violation and a right that runs counter to
a reasonable penological interest—maintaining prison or-
der and security.
   The Supreme Court has stated, however, that “the
government may (and sometimes must) accommodate
religious practices and that it may do so without violat-
ing the Establishment Clause.” Corp. of Presiding Bishop
of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 334 (1987) (upholding exemption of
religious organizations from Title VII’s prohibition of
religious discrimination in employment). With respect to
the second part of the test, “[f]or a law to have forbidden
‘effects’ under Lemon, it must be fair to say that the
government itself has advanced religion through its own
activities and influence.” Id. at 337 (emphasis in original).
Thus, “there is ample room under the Establishment
Clause for benevolent neutrality which will permit reli-
gious exercise to exist without sponsorship and without
interference.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist.
v. Grumet, 512 U.S. 687, 705 (1994) (citing Amos, 483 U.S.
at 334) (internal quotation marks omitted).
No. 02-3572                                               13

  The DOC argues that RLUIPA creates rights in favor of
religious inmates while excluding non-religious inmates and
ignoring the State’s right to administer its correctional
system as it sees fit. When the “government acts with the
proper purpose of lifting a regulation that burdens the
exercise of religion, we see no reason to require that the
exemption comes packaged with benefits to secular enti-
ties.” Amos, 483 U.S. at 338. Borrowing from the Ninth
Circuit again, we too adopt the position that RLUIPA
    does not violate the Establishment Clause just because
    it seeks to lift burdens on religious worship in institu-
    tions without affording corresponding protection to
    secular activities or to non-religious prisoners. RLUIPA
    merely accommodates and protects the free exercise
    of religion, which the Constitution allows.
Mayweathers, 314 F.3d at 1069 (citing Amos, 483 U.S. at
338.).
  Finally, a provision of RFRA nearly identical to the one
at issue in RLUIPA has been held constitutional under the
Establishment Clause by this Circuit and several others.
In re Young, 141 F.3d 854, 862-63 (8th Cir. 1998); Sasnett
v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996), vacated on
other grounds, 521 U.S. 1114 (1997); EEOC v. Catholic
Univ. of Am., 83 F.3d 455, 470 (D.C. Cir. 1996); Flores v.
City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996), rev’d on
other grounds, 521 U.S. 507 (1997). The reasoning behind
RFRA’s validity under the Establishment Clause applies
with equal force to RLUIPA’s constitutionality.
  The requirements of RLUIPA cannot fairly be said to
amount to government advancement of religion through the
government’s own activities or influence. RLUIPA seeks
to remove only the most substantial burdens States im-
pose upon prisoners’ religious rights, while giving States’
penological interests due consideration. The statute
does not promote religious indoctrination, nor does it
14                                                  No. 02-3572

guarantee prisoners unfettered religious rights, and not
every challenge under RLUIPA will be deemed valid.4
   Because the enactment of RLUIPA does not exalt be-
lief over nonbelief, the statute also does not create rights
for religious inmates that do not exist for non-religious
inmates. The DOC argues that RLUIPA is problematic
because its “accommodation” of religious property some-
how increases the overall quantity of personal property
that inmates are entitled to possess. RLUIPA, however,
does not unnecessarily extend the limit the DOC imposes
on the amount of religious property an inmate can possess
in his cell. We see nothing in the statute’s provisions
prohibiting the DOC from requiring the removal of a non-
religious item should an inmate wish to possess a reli-
gious item to which RLUIPA entitles him. And, we sin-
cerely doubt that courts will increase exponentially the
amount of religious property to which inmates are en-
titled by virtue of RLUIPA’s protections (thereby mandat-
ing the State to allow prisoners to exceed any limit on
personal property) in light of States’ interests in maintain-
ing order and security. It happens in this case, however,
that the DOC appeals only the district court’s determina-
tion as to the constitutionality of RLUIPA, ignoring how
the court resolved the merits of Charles’ claim for prayer
oil.
 Accordingly, we find that Congress did not violate the
Establishment Clause of the First Amendment by its


4
  In fact, Charles’ claim that the DOC violated RLUIPA by
allowing him to celebrate only one religious feast per year was
rejected by the district court because the court found that,
although the restriction created a substantial burden to Charles’
religious rights, allowing only one feast for each “umbrella reli-
gion group” was the least restrictive means of furthering the
compelling interest for prison order and security; a decision
Charles does not appeal to this Court.
No. 02-3572                                           15

enactment of RLUIPA. There being no independent consti-
tutional bar to the statute, it remains a valid exercise
of Congress’ Spending Clause authority, and the district
court’s decision to award summary judgment in favor
of Charles on his prayer oil claim under RLUIPA is
AFFIRMED.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—10-30-03
