                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-3512
                                    ___________

United States of America,            *
                                     *
            Appellee,                *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the District of
Amina Farah Ali, also known as Amina * Minnesota.
Wadaado, also known as Amina Aden, *
also known as Amina Adan,            *
                                     *
            Appellant.               *
                                ___________

                              Submitted: March 13, 2012
                                  Filed: June 4, 2012
                                  ___________

Before MURPHY and GRUENDER, Circuit Judges, and ROSS,1 District Judge.
                         ___________


GRUENDER, Circuit Judge.

       A jury found Amina Farah Ali guilty of twelve counts of providing material
support to a designated foreign terrorist organization, al-Shabaab, and one count of
conspiring to do so, all in violation of 18 U.S.C. § 2339B(a)(1). During the trial, the
district court cited Ali for criminal contempt for repeatedly failing to stand when the


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        The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri, sitting by designation.
court convened and recessed as required by a pretrial order. After her first failure to
stand, Ali objected to the order as violating her right to the free exercise of religion.
The court overruled the objection, ultimately cited Ali twenty times for criminal
contempt, and imposed twenty consecutive five-day sentences of imprisonment. Ali
appeals the contempt citations and sentences, contending that they violate the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. We affirm
the first contempt citation, but vacate the subsequent citations and remand for further
proceedings.

I.    BACKGROUND

        On Thursday, September 29, 2011, Ali remained seated at the beginning of the
final status conference before commencement of her criminal trial. The district court
later became aware that Ali had remained seated, and it issued a written order the next
day requiring all parties to “follow the Rules of Decorum set forth by the Court, which
includes rising when Court is called to Order.” Ali did not challenge the order over
the weekend, although her attorney filed memoranda concerning other issues during
that time. Nevertheless, when the court convened for trial on Monday, October 3,
2011, Ali remained seated. After confirming that Ali had been aware of the order
requiring her to rise, the court revoked Ali’s pretrial release status. Ali’s attorney
objected, arguing that Ali was not obstructing the proceedings and that Ali had “a
religious reason” that “she should not rise for persons when she does not rise for the
prophet.” The court ordered a recess so that Ali could be taken into custody.

       After the recess, the court told Ali that she did “not have a First Amendment
right to not rise,” and explained that “[i]t is disruptive and it will cause great harm to
the administration of justice if you do not follow the very basic rules.” When asked
whether she would comply, Ali responded that she “never intended not to follow the
rules of the court,” but that her Muslim religion prohibited her from rising. The court
responded, “You may have an interpretation of your religion that says that you cannot

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rise, but I can tell you that the law of the United States is clear that the freedom of
religion does not keep you from rising and following the decorum of court.” The
court noted Ali’s failure to challenge the order over the weekend, and also noted that
Ali’s Muslim co-defendant and all the individuals in the gallery stood when court
convened. The court subsequently noted that Ali stood when she was introduced to
the jury. Ali explained that standing “for them to see me” was different from standing
to honor them.

        After the court reiterated the rising requirement, Ali responded, “I am willing
to do anything else, but this is not to disrespect anyone. This is not to [not] follow the
court rules. It’s just a matter of faith for me to not stand for anyone. I am willing to
do anything and everything other than . . . to compromise my faith . . . . As far as the
other people who have the same faith as me, if they stand up for the jury or for anyone
else, that’s their rights. When I am before God, God will charge me individually and
they will be charged individually.” The court responded that “it’s the law of the
country that you do not have First Amendment rights dealing with the decorum of the
court.” The court finished by confirming that Ali understood that it would continue
to hold her in contempt of court each time she refused to stand. The district court
cited Ali for ten instances of failing to rise on October 3, 2011, and another ten
instances on October 4, 2011. The court sentenced her to five days in jail for each
instance, for a total sentence of 100 days.

       Ali spent two days incarcerated after the court revoked her pretrial release.
During this time, the court allowed “three learned clerics” to visit Ali. They informed
her that she could stand for the court if she was “in a difficult situation, if [she was]
fearful of [her] own life.” After two nights of incarceration, Ali informed the court
that she would comply with the order. The district court released Ali from custody,
and Ali thereafter stood when court convened and recessed.




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II.   DISCUSSION

        We review a district court’s entry of a criminal contempt citation for abuse of
discretion, “giving plenary review to conclusions of law and reviewing factual
findings for clear error.” Wright v. Nichols, 80 F.3d 1248, 1250 (8th Cir. 1996).
“[W]e will reverse for abuse of discretion if we do not find that [the cited] behavior
constituted contempt beyond a reasonable doubt.” Id. The district court’s power to
punish conduct demonstrating contempt of its authority is limited by statute to conduct
involving “(1) Misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice; (2) Misbehavior of any of its officers in their
official transactions; [or] (3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.” 18 U.S.C. § 401. Ali contends that her contempt
citations should be vacated because the district court’s order violated RFRA, and thus
was not lawful, a question of law subject to de novo review.

       A.     Noncompliance with a Court Order Without a Prior Objection

        As a threshold matter, Ali may not challenge her contempt citation based on her
first failure to rise on October 3, 2011. It is well established that until a court’s
“decision is reversed for error by orderly review . . . its orders based on its decision
are to be respected, and disobedience of them is contempt of its lawful authority.”
Walker v. City of Birmingham, 388 U.S. 307, 314 (1967) (quoting Howat v. Kansas,
258 U.S. 181, 189-90 (1922)); see also United States ex rel. Shell Oil Co. v. Barco
Corp., 430 F.2d 998, 1002 n.8 (8th Cir. 1970) (noting that criminal contempt “remains
a proper sanction regardless of the correctness of the court’s initial decision to issue
the injunction” where “appellants made no effort to have the court modify its
injunction or reopen the judgment” before “violat[ing] the court’s clear mandate”).
Ali admits that she was aware of the order when she failed to rise and concedes that
she did not challenge the order until after her initial failure to rise. Because Ali knew
about the court order in advance, failed to make a formal challenge although she had


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the opportunity to do so, and knowingly violated the order by failing to rise, we affirm
the first citation.

       B.     Applying RFRA to Criminal Contempt of a Court Order

       After her first failure to rise in violation of the pretrial order, Ali challenged the
validity of the order by explaining to the court that she could not comply with the
order without violating her religious beliefs. At this point, Ali effectively requested
an alteration in the order and was forced to choose between violating the order and
forfeiting her potential right to remain seated based on her religious beliefs. See
Walker, 388 U.S. at 318 (“This case would arise in quite a different constitutional
posture if the petitioners, before disobeying the injunction, had challenged it in the
Alabama courts, and had been met with delay or frustration of their constitutional
claims.”). Having raised the defense of free exercise of religion to the district court’s
order, Ali was entitled to risk contempt convictions in order to avail herself of the
right to expedited appellate review of the order. See United States v. Di Mauro, 441
F.2d 428, 436 (8th Cir. 1971) (reviewing the lawfulness of the disobeyed court orders
underlying the defendants’ contempt citations because “[t]he orders were not intended
to preserve the status quo, they required affirmative acts, . . . the defendants made
repeated and strenuous attempts to have them vacated[, and] there is no other way to
obtain a review of the validity of the orders themselves”). Thus, to determine whether
or not Ali’s subsequent violations of the pretrial order constituted criminal contempt,
we must evaluate whether RFRA applies to the pretrial order and whether the district
court correctly assessed Ali’s RFRA free exercise rights.

       The district court denied Ali’s objection to its order on the basis that Ali had no
right under the First Amendment to disobey the court’s rules of decorum. See Emp’t
Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (holding that the
Free Exercise Clause does not exempt individuals from compliance with neutral laws
of general applicability). However, RFRA, enacted in 1993, amended all federal laws,

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including criminal laws, to include a statutory exemption from any requirement that
substantially burdens a person’s exercise of religion unless that requirement is the
least restrictive means to achieve a compelling government interest. See Harrell v.
Donahue, 638 F.3d 975, 983 (8th Cir. 2011) (explaining that RFRA “applies to all
Federal law, and the implementation of that law, whether statutory or otherwise, and
whether adopted before or after” its passage (quoting 42 U.S.C. § 2000bb-3(a))).

        Ali’s contempt citations are criminal convictions. See United States v.
Waggoner, 103 F.3d 724, 727 (8th Cir. 1997) (“As the Supreme Court has stated,
‘Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a
public wrong which is punishable by fine or imprisonment or both.’” (quoting Bloom
v. Illinois, 391 U.S. 194, 201 (1968))). “A person whose religious practices are
burdened in violation of RFRA ‘may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief.’” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C.
§ 2000bb-1(c)). Furthermore, Congress may validly require the federal judiciary to
consider RFRA as a defense to criminal contempt charges. See Russel v. United
States, 86 F.2d 389, 393 (8th Cir. 1936) (holding that the court’s inherent power to
punish for contempt “may be modified, or even abrogated” by a constitutional statute
and that the precursor to 18 U.S.C. § 401 was constitutional). Thus, because Ali
objected to the burden the order placed on her exercise of religion, the district court
erred by failing to consider whether RFRA required accommodation.

       “As an initial matter, a person claiming that a governmental policy or action
violates his right to exercise his religion freely must establish that the action
substantially burdens his sincerely held religious belief.” Weir v. Nix, 114 F.3d 817,
820 (8th Cir. 1997). In the First Amendment context, “[s]ubstantially burdening one’s
free exercise of religion means that the regulation ‘must significantly inhibit or
constrain conduct or expression that manifests some central tenet of a person’s
individual religious beliefs; must meaningfully curtail a person’s ability to express

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adherence to his or her faith; or must deny a person reasonable opportunity to engage
in those activities that are fundamental to a person’s religion.’” Patel v. U.S. Bureau
of Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (quoting Murphy v. Mo. Dep’t of Corr.,
372 F.3d 979, 988 (8th Cir. 2004)). In contrast, RFRA extends free exercise rights
even to religious practices that are not compelled by or central to a particular belief
system. See Van Wyhe v. Reisch, 581 F.3d 639, 656 (8th Cir. 2009) (construing the
definition of “religious exercise” established in 42 U.S.C. § 2000cc-5); 42 U.S.C.
§ 2000bb-2(4) (defining “exercise of religion” under RFRA as meaning “religious
exercise, as defined in [42 U.S.C. §] 2000cc-5”). Thus, in a RFRA analysis, a rule
imposes a substantial burden on the free exercise of religion if it prohibits a practice
that is both “sincerely held” by and “rooted in [the] religious belief[s]” of the party
asserting the claim or defense. See United States v. Zimmerman, 514 F.3d 851, 853
(9th Cir. 2007); see also Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (holding that
a rule imposes a substantial burden on the free exercise of religion when it provides
“no consistent and dependable way” to observe a religious practice).

       After concluding that the pretrial order was neutral and generally applicable,
the district court evaluated whether the order substantially burdened Ali’s religious
practices, although this would not be required in a standard First Amendment analysis.
See Smith, 494 U.S. at 879. The court noted that Ali’s interpretation of Islamic
doctrine was inconsistent with the interpretations of her co-defendant, the Muslim
spectators in the courtroom, and the Muslim clerics who came to speak with her.
While these may be appropriate considerations in a First Amendment analysis of
whether a practice is fundamental to a particular religion, see Patel, 515 F.3d at 813,
such considerations are irrelevant in the RFRA context so long as Ali’s objection to
the pretrial order was rooted in her own sincerely held religious beliefs. See Love, 216
F.3d at 688 (“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.’” (quoting Thomas v. Review Bd. of
the Ind. Emp’t Sec. Div., 450 U.S. 707, 715-16 (1981))); see also Olsen v. Mukasey,

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541 F.3d 827, 831 (8th Cir. 2008) (noting that, under RFRA, “the compelling interest
of a challenged law must be evaluated with respect to the particular claimant whose
religious exercise is substantially burdened”).

       Furthermore, focusing on Ali’s “inconsistent” application of her belief in
refusing to rise to honor the court but standing so that prospective jurors could see her
is not appropriate in the RFRA context. See Love, 216 F.3d at 688 (“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 clarity and precision that a more sophisticated person might employ.’”
(quoting Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 715
(1981))). Ali also stood at other times when doing so facilitated non-ceremonial
functions, such as moving to the podium to address the court when it inquired as to
why she would not stand. Thus, in the RFRA context, the court erred by evaluating
the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether
her practice was rooted in her sincerely held religious beliefs.

       Here, the parties do not dispute that Ali’s refusal to stand was rooted in her
sincerely held religious beliefs. Furthermore, an order requiring someone either to act
affirmatively in violation of a sincerely held religious belief or face criminal penalties
substantially burdens the free exercise of religion. Cf. Wisconsin v. Yoder, 406 U.S.
205, 234-36 (1973) (recognizing a religious exemption from criminal penalties under
compulsory school attendance laws for Amish parents under the Sherbert First
Amendment doctrine). Thus, once Ali raised an objection rooted in her sincerely held
religious belief, the government could enforce the order “only if it demonstrate[d] that
application of the burden to [Ali] . . . is the least restrictive means of furthering [a]
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).




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       Because the district court applied only a First Amendment analysis, it never
evaluated whether the pretrial order was the least restrictive means to achieve a
compelling government interest, as required by RFRA. Ali concedes that maintaining
order in the courtroom is a compelling government interest. Thus, we remand to the
district court to evaluate whether the pretrial order was the least restrictive means to
further that or other compelling interests. In making this evaluation, the district court
must reach a balance between maintaining order and avoiding unnecessary and
substantial burdens on sincere religious practices. See Murphy, 372 F.3d at 987. As
we have said when applying RFRA to prisons, “[a]lthough we require[] the
government to meet a higher burden than the rational relation test applicable in
constitutional claim cases, we nevertheless accord[] a significant degree of deference
to the expertise of prison officials in evaluating whether they [meet] that burden.” Id.
This deference is necessary because Congress intended the RFRA test to “be adjusted
for the different contexts in which free exercise claims arise, the prison context being
one with special needs.” Id. A courtroom likewise is a special context in which
special needs arise, requiring a significant amount of discretion to be vested in the
district court. Because a party must challenge a court order under RFRA before
violating it to avoid criminal contempt liability, courts will have the opportunity to
exercise that discretion so that discipline and decorum in the court will not be
compromised. On remand, the district court may exercise this discretion as it
evaluates whether the pretrial order was the least restrictive means to further a
compelling government interest.

III.   CONCLUSION

      For the foregoing reasons, we affirm the first contempt citation, vacate the
remaining citations, and remand for further proceedings consistent with this opinion.

                         _____________________________




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