                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                __________

                                 No. 99-3149
                                 __________

Kelvin Ray Love,                        *
                                        *
            Appellee,                   *       Appeal from the United States
                                        *       District Court for the Eastern
v.                                      *       District of Arkansas
                                        *
M.D. Reed, G. David Guntharp, and       *
Bruce Collins,                          *
                                        *
            Appellants.                 *
                                __________

                           Submitted: April 14, 2000
                               Filed: July 5, 2000
                                 __________

Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and FRANK,1 District
      Judge.


FRANK, District Judge.




     1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
       Appellants, all agents of the Arkansas Department of Corrections,2 appeal from
the district court’s3 ruling that appellants violated appellee’s First Amendment right
to free exercise of religion by failing to provide him with food in his cell on his
Sabbath. We affirm.

                                          I.

       Appellee Kelvin Ray Love (“Love”) is an inmate in the Arkansas Department
of Corrections (“ADC”). When he was incarcerated in 1982, Love identified his
religion as “Catholic.” During the course of his incarceration, however, Love’s
religious beliefs have changed.

       Now, Love is a self-proclaimed adherent of the “Hebrew religion”4; although
Love does not necessarily consider himself at this point to be Jewish–indeed, he does
not formally ascribe to any organized religion–he is a student of the Old Testament


      2
      According to the Amended Complaint, Joint Appendix at 11, M.D. Reed is the
Warden of Cummins Unit of the ADC, Bruce Collins is the Assistant Warden of
Operations for Cummins Unit, and David Guntharp is a Deputy Director of ADC.
      3
       The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, who presided over the case pursuant to the consent of
the parties. See 28 U.S.C. § 636(c).
      4
        The record indicates that Love has tried on several occasions to change his
official religious designation, but he has been unable to do so because of a variety of
procedural problems, such as his failure to use the proper forms or to have his request
notarized. In addition, the Administrator of Religious Services for the ADC testified
that he could not find “Hebrew religion” on any list of recognized religions. He
further testified that, if Love would request it, he would arrange a meeting between
a Rabbi and Love to ascertain whether Love’s belief system could be relabeled in
such a way that it would correspond with the list of recognized religions–a suggestion
which Love has indicated he would “embrace” and “appreciate.” J.A. at 183.

                                         -2-
of the Christian Bible, and his religious beliefs derive from his own interpretation of
that text. Love explained his situation during a hearing before the district court:

      Q:     You use a text that others use?
      A:     Yes, sir.
      Q:     But you’ve given it – you have a [sic] interpretation that is not a
      tenet of other religions; is that what –
      A:     Due to the fact that I don’t have anybody to teach me the true
      doctrines. I’m – I’m learning on my own so I have to learn precept by
      precept.
             And really, I’m trying to practice the old Hebrew religion and I’m
      going by the King James Version which has been translated and re-
      translated and misinterpreted . . . .

Joint Appendix (hereinafter “J.A.”) at 50. In short, Love has indicated his desire to
return to first principles, religiously speaking, by studying the Old Testament. He is
skeptical of Christian interpretations of this text–indeed, he is skeptical of Christian
translations of this text, but has been unable to obtain a Hebrew Bible–and has had
no opportunity to study or discuss the text with adherents to any Jewish sects. While
Love has corresponded with the Jewish Prisoners Service International about issues
such as Kosher standards, he has no source of regular religious instruction on
Judaism. As a result, Love has endeavored to interpret the plain language of the Old
Testament himself.

        From his study of the Old Testament, Love has concluded, among other things,
that it is wrong to leave his residence or to work on the Sabbath,5 a period which he

      5
       Love cites Exodus 16:23 (“And he said unto them, This is that which the Lord
hath said, Tomorrow is the rest of the holy sabbath unto the Lord: bake that which ye
will bake today, and boil that ye will boil; and that which remaineth over lay up for
                                                                       (continued...)

                                          -3-
considers to run from sundown on Saturday to sundown on Sunday. Love’s belief
about resting on the Sabbath extends to a belief that he should not benefit from work
others perform on the Sabbath.6 As a result, the district court found that Love
believes that he “is neither permitted to eat food prepared by others on the Sabbath,
nor to have others serve him through their work on the Sabbath.” J.A. at 236. To
accommodate these beliefs, Love requested in late 1995 that the ADC provide him
with peanut butter and bread in his cell on Saturday so that he might prepare
sandwiches to consume in his cell on the Sabbath.7 The ADC has allowed Love to
forego cafeteria meals on his Sabbath. However, citing concerns about cell
cleanliness and existing contraband rules, the ADC declined to provide Love with
food from the prison kitchen for his Sabbath meals.




      5
        (...continued)
you to be kept until the morning.”) and Exodus 16:29 (“See, the Lord hath given you
the sabbath; therefore he giveth you on the sixth day the bread of two days. Abide
every man in his place, let no man go out on the seventh day.”). Because Love has
testified that he studies the King James Version of the Old Testament, we have used
that version for our references.
      6
        Love cites Exodus 20:10 (“But the seventh day is the sabbath of the Lord thy
God; in it thou shalt not do any work, thou, nor they son, nor thy daughter, thy
manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy
gates . . . .”). Both Love and some of the prison guards testified that Love does not
solicit any labor from anyone on the day he recognizes as the Sabbath; one guard
admitted that Love will not even ask a guard to turn off a light for him as that would
interfere with the guard’s “rest.”
      7
       Appellants have indicated that Love is free to purchase pre-packaged food in
the commissary for consumption on the Sabbath. However, the district court found
that Love is indigent and does not always have money to purchase such luxuries. As
Love himself put it, the food is there to be purchased but “it’s just like rain is in the
clouds . . . .” J.A. at 64.

                                          -4-
       Love filed an action in district court pursuant to 42 U.S.C. § 1983, alleging
violation of his right to free exercise of religion as guaranteed in the First Amendment
to the United States Constitution. Following a trial, the district court concluded that
the ADC’s refusal to accommodate Love by providing him with sandwich makings
on Saturday did constitute a violation of Love’s constitutional rights.

       The prison officials now appeal, alleging: (1) that Love’s belief system is not
a “religion” so as to be protected by the First Amendment; (2) that, even if the Court
finds Love’s beliefs to constitute a religion, the ADC’s rules do not impinge upon
Love’s free exercise of that religion; and (3) that, even if the Court finds that the
ADC’s policies impinge upon Love’s free exercise of religion, those policies are
reasonably related to a legitimate penological interest and therefore should be
sustained.

       We review the district court’s factual findings under the “clearly erroneous”
standard; the district court’s legal conclusions are reviewed de novo. See Paramount
Pictures Corp. v. Metro Program Network, Inc., 962 F.2d 775, 777 (8th Cir. 1992).
We affirm the district court and find that the ADC’s policies do constitute an
infringement of Love’s constitutional rights.

                                          II.

       We first consider whether the district court erred in finding that Love’s beliefs
constitute a sincerely held religious belief protected by the First Amendment. “The
appellants do not doubt that appellee’s beliefs are sincere, but only that his belief
system as described in the record should not be considered a religion.” Appellants’
Brief at viii.

     First Amendment protection only attaches to beliefs rooted in religion, as
opposed to purely secular beliefs or personal preferences. See Thomas v. Review

                                          -5-
Board of the Indiana Employment Security Division, 450 U.S. 707, 713 (1981); Ochs
v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996). “The determination of what is a
‘religious’ belief or practice is more often than not a difficult and delicate task . . . .
However, the resolution of that question is not to turn upon a judicial perception of
the particular belief or practice in question; religious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to merit First Amendment
protection.” Thomas, 450 U.S. at 714.

       The ADC cites Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3rd
Cir. 1981), as defining three “useful indicia” of a religion for the purposes of First
Amendment jurisprudence:

      First, a religion addresses fundamental and ultimate questions having to
      do with deep and imponderable matters. Second, a religion is
      comprehensive in nature; it consists of a belief-system as opposed to an
      isolated teaching. Third, a religion often can be recognized by the
      presence of certain formal and external signs.

662 F.2d 1025, 1032. Using these indicia as a benchmark, the ADC asserts that
Love’s belief system does not constitute a religion.

       First, we note that, while the Third Circuit emphasized the importance of
setting some objective guidelines, they also conceded that they did not intend to
articulate a rigid “test” for defining a religion and that “‘[f]lexibility and careful
consideration of each belief system are needed.’” Africa, 662 F.2d at 1032 n.13
(quoting Malnak v. Yogi, 592 F.2d 197, 207-210 (3rd Cir. 1979) (concurring
opinion)). Yet even applying the Africa standards as a “test,” we find that Love’s
belief system is a religion.




                                           -6-
       With respect to the first two prongs of this analysis, Love’s belief system is
derived from his own study of a text which is central to two of the world’s major
religions: Christianity and Judaism. When asked to articulate the tenets of his belief
system, Love confined his testimony to those tenets which affected this lawsuit; he
was asked only about those beliefs that had some bearing on the lawsuit. J.A. at 47-
48. However, he has clearly indicated that his religion is premised upon a
fundamentalist approach to the Old Testament.8 To suggest that the Old Testament
of the Bible, standing alone as a religious text, fails to address “fundamental and
ultimate questions having to do with deep and imponderable matters,” or that it does
not provide a comprehensive “belief-system as opposed to an isolated teaching”
would be to call into question the “religiousness” of two of the most prominent
religions in this country.

       Love himself admits that his understanding of the tenets of his belief-system
are evolving. However, “[c]ourts should not undertake to dissect religious beliefs
because the believer admits that he is ‘struggling’ with his position or because his
beliefs are not articulated with the clarity and precision that a more sophisticated
person might employ.” Thomas v. Review Board of the Indiana Employment
Security Division, 450 U.S. 707, 715 (1981). Here, Love concedes his is not an
expert on the scriptures, even though he provided the district court with chapter and
verse supporting his Sabbath meal request. While he may not yet be able to place
individual precepts in a broader philosophical context, the record indicates that he is
struggling in that direction–without the benefit of formal instruction. It is not the
place of the courts to deny a man the right to his religion simply because he is still
struggling to assimilate the full scope of its doctrine. We would not deny that a Jew’s

      8
        Indeed, Love strongly identifies with the Jewish faith. When asked whether
he considered himself to be “Hebrew” or “Jewish,” Love responded, “I don’t consider
there to be a difference between them.” J.A. at 206. He went on to explain that he
“wanted to go back to the ‘A’ priority [sic] origin of the religion and that is it. The
founder of the Jewish religion was a Hebrew.” J.A. at 206-207.

                                         -7-
desire to keep Kosher is rooted in religion even if he were not a Rabbinical scholar
capable of explaining the more subtle spiritual aspects of Judaism; similarly, we will
not deny that Love’s desire to follow the express dietary laws of the Old Testament
is rooted in religion simply because he does not now attempt to draw more broad
spiritual lessons from the text.

       With respect to the third prong of the Africa analysis, the ADC suggests that
Love has demonstrated only two formal or external signs which might be analogized
to other traditional religions: his practice of not eating meals prepared or delivered
on the Sabbath and his practice of not leaving his dwelling on the Sabbath. Love has
not, they argue, offered evidence of “formal services, ceremonial functions, the
existence of clergy, structure and organization, efforts at propagation, observance of
holidays [or] other similar manifestations associated with the traditional religions.”
Appellants’ Brief at vii. We note, however, that Love is still attempting, through
study and through correspondence with both the Jewish Prisoners Services
International and the Alief Institute, to determine where his own beliefs fit with
respect to Orthodox, Conservative, and Reform Judaism. Certainly, Judaism boasts
formal services, ceremonial functions, a clergy, and structure and organization. Love
himself does strictly observe a weekly “holiday” by keeping the Sabbath holy, and he
has indicated that he would engage in other ceremonial behavior (such as ritual
cleansing) if the strictures of prison life did not prevent it.

      In short, we conclude that the district court correctly found that “[w]hile [Love]
does not consider himself ‘Jewish,’ he does adhere to practices and teachings which
are part of the Jewish faith.” J.A. at 239. His beliefs may not fit squarely with the
orthodoxy of Judaism, in any of its forms, but “the guarantee of free exercise is not
limited to beliefs which are shared by all of the members of a religious sect,” Thomas,
450 U.S. 715-716, and some allowance must be made for Love’s isolation from a




                                          -8-
source of formal instruction in Judaism.9 To suggest that Love’s belief-system falls
short of being a religion would be to call into question the religious standing of all
those who infuse Judaism, Christianity, or other “traditional” religions with personal
interpretation and introspection. We are not inclined to do that. Accordingly, we find
that the district court correctly held that Love’s belief-system is a “religion” for
purposes of First Amendment protection.

       The ADC further argues that, even if Love’s belief-system is religious in
nature, his request regarding special meals on the Sabbath should not be considered
a “religious preference.” The ADC cites Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir.
1996), for the proposition that we should be more cautious in ascribing religious
significance to requests or preferences which involve purely secular aspects of life,
including “the timing of meals.” However, this Court noted in Wiggins v. Sargent,
753 F.2d 663, 666-667 (8th Cir. 1985), that “a belief can be both secular and religious.
The categories are not mutually exclusive. The first amendment presumably protects
the area where the two overlap.” Here, Love’s meal request is supported by direct
reference to a passage in his religious text. Again, it is difficult to distinguish
between Love’s Sabbath meal request and the Kosher laws of Judaism or the
strictures the Islamic religion places on eating during daylight hours during Ramadan.
Not only is Love’s belief-system a “religion,” but his preference for food not prepared
or served on the Sabbath is a religious preference which falls within the ambit of the
First Amendment.




      9
       We note that members of the Jewish community might not consider Love to
be Jewish, as he was apparently raised as a Christian and he has undergone no formal
conversion. However, “the question whether [Love’s] beliefs are entitled to Free
Exercise protection turns on whether they are ‘sincerely held,’ not on the
‘ecclesiastical question’ whether he is in fact a Jew under Judaic law.” Jackson v.
Mann, 196 F.3d 316, 321 (2nd Cir. 1999).

                                          -9-
                                          III.

       Next we consider whether the ADC’s refusal to provide food from the facility
kitchen to Love on Saturday for consumption on Sunday substantially burdens
Love’s ability to freely exercise his religion. The ADC argues that it does not.
Specifically, they note that Love is free to purchase food from the commissary or to
fast on the Sabbath; the ADC does not force Love to violate his religious convictions
by eating food prepared or served on the Sabbath.

       With respect to the ADC’s claim that Love can exercise his religion on the
Sabbath by buying pre-packaged food in the commissary, the district court found that
Love is indigent and does not generally possess the funds to buy food. The district
court’s finding regarding Love’s indigency is not clearly erroneous. Moreover, the
district court concluded that Love was obligated to spend any money he did obtain
for food from the commissary for observance of his Sabbath; however, to the extent
that Love does not, in a particular week, have money for purchasing food from the
commissary, the ADC should provide him with food on Saturday. In other words, the
district court’s ruling requires Love to exhaust alternative means of observing the
Sabbath before seeking an accommodation from the ADC.

       Finally, we reject the ADC’s apparent contention that Love’s option of fasting
on his Sabbath–as he has been doing–abrogates their obligation to accommodate his
religious dietary requirements. We agree with the Second Circuit’s recent
pronouncement that prison inmates are entitled to reasonable accommodation of their
religious dietary needs. Jackson v. Mann, 196 F.3d 316, 320 (2nd Cir. 1999). Giving
Love the option of fasting is not a reasonable accommodation of his religious dietary
needs. At a minimum, Love has indicated that fasting interferes with his ability to
appropriately celebrate his Sabbath. As he explains his religious beliefs, the Sabbath
is intended as a day of rest and refreshment; fasting is a practice reserved for days of
mourning and atonement. An enforced fast on the Sabbath detracts from the joy of

                                         -10-
the day. J.A. at 189. The choice the ADC would offer Love, between fasting and
compromising his religious convictions, is really no choice at all.

      We conclude, then, that Love has no consistent and dependable way of
exercising his right to observe his Sabbath without the requested accommodation by
the ADC. The ADC’s failure to provide the requested accommodation, then,
substantially burdens Love’s ability to freely exercise his religion.

                                         IV.

       Finally we turn to the issue of whether the ADC has shown a reasonable
relationship between the policy which impedes Love’s free exercise of religion and
some legitimate penological interest. “[W]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In
determining whether a regulation is reasonable, courts should consider: (1) whether
there is a valid, rational connection between the regulation and the interest asserted;
(2) whether alternative means of exercising the right remain open to the prisoner;
(3) the effect the requested accommodation will have on guards, other inmates, and
the allocation of prison resources; and (4) whether there is some alternative which
will accommodate the prisoner’s needs with de minimis impact on the prison’s
asserted interests. Id. at 89-91.

      The ADC has identified two legitimate penological interests which it purports
to advance by prohibiting Love’s accommodation. First, the ADC argues that
“hoarding” of food from the kitchen would increase the probability of spoilage,
thereby compromising the penological interest in maintaining a sanitary facility.
Second, the ADC argues that if they extend this “privilege” to Love, other inmates
will demand the same privilege, and the resulting discontent will compromise the



                                         -11-
penological interests of security and order. We do not find these arguments
persuasive.

       The ADC has repeatedly stressed that Love is free to buy food in the
commissary for consumption at any time. The ADC argues that the food available in
the commissary is less prone to spoilage than food which comes from the kitchen and
thus does not pose the same sort of health risk. To that end, counsel for the ADC
pointed out that beef jerky bought in the commissary is less likely to spoil quickly
than a “hamburger steak” from the facility kitchen. J.A. at 184. While it is true that
some kitchen food spoils more quickly than some commissary food, the opposite is
also true: an open can of pork and beans or unwrapped microwavable sandwich
(from the commissary) would likely spoil more quickly than a loaf of bread and jar
of peanut butter (from the kitchen). Indeed, Love testified that loaves of bread were
available from the commissary and thus could be purchased by prisoners, stored in
their cells, and consumed at their leisure. Love, himself, once purchased peanut
butter in the commissary. The type of food items Love has requested are not highly
perishable items. Rather, they are food items which could be, and likely are, stored
in the cells of inmates with the funds to buy them from the commissary. The ADC’s
argument, that providing these foods to Love a day in advance would create a
potential health risk, rings hollow.

        We also note that the ADC already makes exceptions to its rule by providing
certain prisoners–those in segregation or observing religious holidays–with kitchen
food in their cells.10 It is certainly foreseeable that crumbs and bits of that food would
fall to the floor where it might spoil or attract bugs.


      10
        The ADC distinguishes those situations from Love’s request by noting that
the kitchen food brought to the cells is for immediate consumption. Given that Love
is requesting his food only a day in advance, the ADC appears to be drawing the
proverbial distinction without a difference.

                                          -12-
       Certainly the ADC’s interest in health and sanitation is legitimate. But a
blanket prohibition on food from the facility kitchen is not reasonably related to that
interest. If Love were requesting hamburgers, cartons of milk, or other highly
perishable items on Saturday for Sunday consumption, the ADC’s denial of his
request might be justified. However, Love has requested only peanut butter and
bread–items which are available in the commissary for other prisoners, with money,
to purchase and store in their cells. The accommodation Love has requested poses
no more of a threat to the prison’s sanitation than do practices which are already
common in the prison.

       The ADC’s second asserted penological interest is similarly unconvincing. The
ADC suggests that providing Love with bread and peanut butter on Saturday, for
consumption on Sunday, would open a floodgate of similar requests from other
inmates. As the district court noted, it is “difficult to believe that most inmates would
go to great lengths to obtain the same treatment as plaintiff; that is, to remain in a cell
all day on Sunday with a couple of sandwiches to eat for a day, as opposed to leaving
the cell for three hot meals in the cafeteria.” J.A. at 241. Indeed, Appellant M.D.
Reed testified: “[I]nmates usually prefer hot meals, you know, over a sandwich, in
most cases. . . . [I]t would cause problems if I delivered sack lunches to
administrative seg [sic]. I would say that the large part of that population would not
be happy with it, and it would cause real problems.” J.A. at 126.

       The real concern, Reed testified, is that, if the ADC accommodates Love, other
prisoners will request other accommodations of their dietary preferences. This
justification for denying Love’s accommodation is not persuasive. The same
argument could be made with respect to the ADC’s accommodation of the Islamic
prisoners fasting during Ramadan: the fact that these prisoners get food brought to
their cell after dark might prompt other inmates to want the same, or other,
consideration. But as with the case of the Islamic prisoners, the key factor here is that
Love’s request is based upon his religious convictions. If other prisoners request

                                           -13-
dietary accommodations based upon sincerely held religious beliefs, then the ADC
has an obligation to consider their requests. If other prisoners request dietary
accommodations which are based merely upon personal preference, the ADC will be
under no obligation to provide those accommodations.

      In short, we agree with the district court’s holding that the ADC’s refusal to
accommodate Love’s religious dietary needs is not reasonably related to a legitimate
penological interest.

       Turning to the remaining considerations in the Turner analysis, we have
already discussed Love’s lack of available alternative means of exercising his right
to abide by his religious convictions with respect to his Sabbath meals. Moreover,
we concur with the district court’s assessment that:

      the impact of providing [Love] non-perishable food on Saturdays for his
      consumption on Sundays is minimal. Special dietary trays are prepared
      for inmates with other beliefs, and guards transport meals to inmates in
      other areas of the unit on a daily basis. Finally, . . . the provision of food
      to [Love] on Saturdays is an alternative [to the ADC’s general policy]
      which “fully accommodates the prisoner’s rights at de minimis cost to
      valid penological interests.”

J.A. at 241-242 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996)).

       We conclude, then, that the ADC’s policy infringes upon Love’s sincerely held
religious beliefs and that it is not reasonably related to any valid penological interest.
Accordingly, the decision of the lower court is affirmed.




                                          -14-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                              -15-
