                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                      REVISED JANUARY 7, 2005
                                                               December 8, 2004
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                    Clerk

                            No. 03-40028



DONALD M. ADKINS,

                                                  Plaintiff-Appellant,

                               versus

DON KASPAR, Chaplaincy Department; ROY A. GARCIA, Warden, Coffield
Unit; MICHAEL W. SIZEMORE, Assistant Warden, Coffield Unit; KENNETH
M. REYNOLDS, Chaplain, Coffield Unit; LARRY HART, Assistant
Chaplain, Coffield Unit; KEVIN MOORE, Senior Warden, Coffield Unit;
LEONARD SANCHEZ, Senior Chaplain, Coffield Unit,

                                                  Defendants-Appellees,




          Appeal from the United States District Court
                for the Eastern District of Texas




Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

     Plaintiff-Appellant Donald M. Adkins, a Texas state prisoner

incarcerated   at   all   relevant   times   in    the   Coffield      Unit

(“Coffield”) and proceeding pro se, filed suit in district court

alleging violation of his First and Fourteenth amendment rights, as

well as violation of the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”).1        Made defendants were Don Kaspar of the

Chaplaincy Department of the Texas Department of Criminal Justice

(“TDCJ”) and the following Coffield personnel:           Roy A. Garcia,

Michael Sizemore, Kenneth Reynolds, Larry Hart, Kevin Moore, and

Leonard Sanchez (collectively, “defendants”). Following a Flowers2

hearing, the magistrate judge made findings of fact and conclusions

of law, and recommended dismissing Adkins’s action with prejudice.

The district court adopted the magistrate judge’s recommendation

and dismissed the suit.         Adkins advances four claims on appeal:

(1) The district court erred in concluding that there was no

violation of his First Amendment right to free exercise of his

religion; (2) the district court erred in concluding that he

suffered no Equal Protection violation; (3) defendants’ actions

violated    the   RLUIPA’s   prohibition   of   substantially   burdening

religious exercise without specifying a compelling governmental

interest and a narrowly tailored solution; and (4) the magistrate

judge’s denial of Adkins’s witness subpoena requests was an abuse

of discretion.     We affirm.

                       I.    FACTS AND PROCEEDINGS

     Adkins is a member of the Yahweh Evangelical Assembly (“YEA”).

The gravamen of his complaint is that he has not been permitted to


     1
         42 U.S.C. § 2000cc et seq.
     2
       Flowers v. Phelps, 956 F.2d 488 (5th Cir.), vacated and
superceded in part on denial of reh’g, 964 F.2d 400 (5th Cir.
1992).

                                     2
observe particular days of rest and worship (each Saturday for the

Sabbath and a number of specific holy days), which is a requirement

of his faith.        The case was referred to a magistrate judge, who

conducted an evidentiary hearing consistent with Flowers. Adkins’s

witnesses at the Flowers hearing included (1) Jerry Healan, a YEA

elder who went to Coffield once a month to preside over observance

of the Sabbath, (2) David and Nancy McEnany, who work with YEA

inmates in the Oklahoma prison system and trained to be YEA

volunteers     at    Coffield,   and   (3)     Adkins       himself.3    Defendant

Sanchez, the Senior Chaplain at Coffield, was the only witness for

the defendants.

      Healan testified that the YEA requires its adherents to meet

together on every Sabbath and to congregate and make particular

observations on specific holy days.                He further testified that he

has been permitted to go to Coffield and hold a baptismal service

for   Adkins   and    other   inmates,       and    that,    following   volunteer

training, he has gone to Coffield once a month to oversee Sabbath

observances. Healan estimated that approximately 25 to 30 Coffield

inmates regularly attend these meetings.               Healan stated that he is

unable to attend more often because of the distance he must travel

to and from Coffield, and the travel time’s effect on his other

religious and personal obligations.            Healan also testified that he


      3
       Adkins also called Thomas Hobbs as a witness.    As his
testimony is irrelevant to any issue in this case, we have not
included it in this recitation of facts.

                                         3
and    Adkins   correspond   regularly   and   that   he   sends   religious

materials to Adkins in prison.       Healan stated that Adkins has a

solid understanding of YEA beliefs, and has authored several

articles that were published in newsletters and on the Internet.

       The McEnanys testified that they went through the Coffield

religious volunteer program so that they could attend and oversee

Sabbaths at Coffield. At the time of the Flowers hearing, however,

neither of them had been cleared by prison officials to lead

meetings on their own.

       Adkins acknowledged he has been granted “lay-ins” for holy

days and the Sabbath, but testified that he and other YEA members

had been denied the right to assemble and hold services on their

own.    He also acknowledged that he and other YEA members had been

allowed to attend tape sessions and listen to tapes sent by Healan,

but that they are only allowed to do this on Mondays.                 Adkins

averred that he was told that the tape sessions cannot be held on

Saturdays unless an accredited religious volunteer is present.

       Sanchez testified in response that YEA members are allowed to

congregate on the Sabbath when Healan is present at Coffield, and

that if Healan were able to attend more frequently on Sabbaths and

holy days, arrangements would be made for the YEA members to

congregate, conditioned only on availability of space and time.

Sanchez confirmed that thus far the McEnanys had not been allowed

to lead YEA services at Coffield without the supervision of Healan

because of a concern that “some things that were going on” were

                                    4
“inmate driven.”           Sanchez added, however, that if the McEnanys

would attend several more sessions with Healan, they would be

accredited to lead YEA services on their own.                         Sanchez also

testified    that      there   are   some    3200   inmates    at     Coffield   and

approximately 150 recognized faith groups in the prison system.

     The magistrate judge concluded that the defendants had not

denied Adkins a reasonable opportunity to exercise his religion.

Applying the definition of “substantial burden” enunciated by the

Seventh Circuit in Mack v. O’Leary,4 the magistrate judge concluded

that the defendants had not burdened Adkins’s religious exercise in

violation    of      the   RLUIPA.     The    magistrate      judge    recommended

dismissal of Adkins’s action; and, after considering the record,

the magistrate judge’s recommendations, and the objections raised

by Adkins, the district court dismissed the case.




                                 II.   ANALYSIS

A.   STANDARD   OF   REVIEW

     An evidentiary hearing consistent with Flowers v. Phelps5

“amounts to a bench trial replete with credibility determinations



     4
         80 F.3d 1175 (7th Cir. 1996).
     5
       956 F.2d 488 (5th Cir.), vacated and superseded in part on
denial of reh’g, 964 F.2d 400 (5th Cir. 1992).

                                        5
and findings of fact.”6     A district court’s legal conclusions at a

bench trial are reviewed de novo and its findings of fact are

reviewed for clear error.7

B.   FREE EXERCISE CLAIM

     Adkins’s    original   complaint   alleged   that   defendants   non-

compliance with the TDCJ’s religious accommodation policy impinged

on the free exercise of his faith.          Citing Turner v. Safley,8

Adkins argues on appeal that defendants’ violations of the TDCJ

policy are not the basis of his First Amendment claim, just

evidence to be considered in evaluating it.          Our review of the

district court’s factual findings regarding defendants’ compliance

with the TDCJ policy reveals no clear error.       Adkins’s only viable

free exercise claim lies in his challenge to the constitutionality

of the TDCJ policy.

     Turner established a four-factor “rational relationship” test

for analyzing the constitutionality of regulations that burden a

prisoner’s fundamental rights.9     Under Turner’s test, courts must

consider (1) whether a “valid, rational connection [exists] between

the prison regulation and the legitimate governmental interest put

forward to justify it,” (2) whether there exist “alternative means

     6
         McAfee v. Martin, 63 F.3d 436, 437 (5th Cir.1995).
     7
       Westchester Fire Ins. Co. v. Haspel-Kansas Inv. P’ship, 342
F.3d 416, 418 (5th Cir. 2003).
     8
         482 U.S. 78 (1987).
     9
         Id.

                                   6
of exercising the fundamental right that remain open to prison

inmates,”     (3)   what    “impact   accommodation   of    the   asserted

constitutional right will have on guards and other inmates, and on

the allocation of prison resources generally,” and (4) whether

there is an “absence of ready alternatives” to the regulation in

question.10

     We    recently   upheld    the   constitutionality    of   the   TDCJ’s

religious accommodation policy in Freeman v. Texas Department of

Criminal Justice.11    In that case inmates filed a class action suit

alleging that the TDCJ failed to provide them adequate opportunity

to practice their faith, in violation of the First and Fourteenth

Amendments.     Applying Turner, we affirmed the district court’s

grant of those defendants’ motion for summary judgment to dismiss

the inmates’ case.         Like the inmates in Freeman, Adkins seeks a

permanent injunction requiring the TDCJ to make provisions for

additional YEA services.

     In Freeman, we held that the TDCJ’s religious accommodation

policy is rationally related to legitimate government objectives,

the first and “paramount inquiry under Turner.”12          Addressing the

second prong of the Turner test —— whether “alternative means” of



     10
          Id. at 89-90.
     11
          369 F.3d 854 (5th Cir. 2004).
     12
       Id. at 861. Specifically, that staff and space limitations,
as well as financial burdens, are valid penological interests. Id.
(citing Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir. 1996).

                                      7
exercising the group’s religious beliefs exist —— Adkins argues,

and the record reflects, that he and the other YEA members were not

permitted to assemble on every Sabbath day and on particular holy

days because no volunteer deemed acceptable by defendants was

available to supervise the meetings. In analyzing the availability

to inmates of “alternative means” of exercising their religion,

however, “[t]he pertinent question is not whether the inmates have

been denied specific religious accommodations, but whether, more

broadly, the prison affords the inmates opportunities to exercise

their     faith.”13   The   magistrate   judge   found,   and   the   record

confirms, that (1) Adkins had access to religious materials; (2) he

and other YEA inmates were not required to work on the Sabbath; (3)

video and audio tapes were made available on Mondays to all YEA

members; and (4) YEA members were permitted to hold and attend live

services when Healan was able to attend.             These supplemental

services, materials and other accommodations furnish Adkins and the

YEA members with “alternative means” of exercising their religion.14

     Adkins contends that the tape sessions were no longer allowed

following the filing of this suit.       Contrary to this, though, the

magistrate judge’s findings, which the district court adopted,


     13
          Id.
     14
        See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
(upholding a regulation that prohibited Muslim prisoners from
attending Friday afternoon services, the Court found the ability to
participate in other Muslim religious ceremonies satisfied Turner’s
“alternative means” test).

                                    8
state that the tapes are still made available for viewing.                   The

current status of the tape sessions is not absolutely clear from

the record, but on appeal we look for clear error only, and we find

none here. In addition, Sanchez stated at the Flowers hearing that

if Healan comes to the prison more frequently, additional Sabbath

meetings will be accommodated.

     We do find some source for concern in the prison’s rejection

of the McEnanys as volunteers.         According to affidavits filed in

the district court, the McEnanys were certified by the official

volunteer training program and are currently allowed to conduct

Sabbath meetings in the Oklahoma prison system.             Although Sanchez,

in his testimony at the hearing, expressed concern that some

occurrences involving the McEnanys were “inmate driven,” he did

indicate that if the McEnanys attend several sessions at which

Healan is present so that they “can get their feet on the ground,”

they will be allowed to conduct YEA services on their own.

     Third,    we   must    consider   the   impact    of    granting   Adkins

injunctive    relief   on   “guards    and   other    inmates,   and    on   the

allocation of prison resources generally.”             The 20 to 25 active

members of YEA constitute less than one percent of the large inmate

population at Coffield.       Requiring the defendants to accommodate

every religious holiday and requirement of the YEA, regardless of

the availability of volunteers, space, or time, could “spawn a

cottage industry of litigation and could have a negative impact on



                                       9
prison staff, inmates and prison resources.”15                    Moreover, if Adkins

were accommodated and other similarly situated small religious

groups were not, the YEA could appear to be favored over the

others, a perception that could have a negative effect on prison

morale and discipline.16

       Finally, “no obvious, easy alternatives would accommodate

both” Adkins and the TDCJ’s administrative needs.17                            Adkins’s

request that defendants allow the YEA members to assemble on each

of     their    holy   days      and   every      Sabbath,        regardless    of     the

availability      of   qualified       volunteers       and       adequate    space    and

security, is not an “alternative that fully accommodates the

prisoner’s      rights      at   de    minimis     cost      to    valid     penological

interests.”18      Chaplain Sanchez testified that the YEA would be

allowed to meet on every Sabbath that Healan or another qualified

volunteer is present, as well as on YEA holy days, if space and

time    are    available.         In   light      of   the    foregoing       facts    and

considerations,        we   affirm     the    district       court’s       dismissal    of

Adkins’s First Amendment free-exercise claim.



       15
       Freeman, 369 F.3d at 862; see also Turner, 482 U.S. at 90
(“When accommodation of an asserted right will have a significant
‘ripple effect’ on fellow inmates or on prison staff, courts should
be particularly deferential to the informed discretion of
corrections officials.”).
       16
            See Kahey v. Jones, 836 F.2d 948, 951 (5th Cir. 1988).
       17
            Freeman, 369 F.3d at 862.
       18
            Turner, 482 U.S. at 91.

                                             10
C.   EQUAL PROTECTION CLAIM

     Although it is not entirely clear from Adkins’s complaint or

the briefs, he appears to contend that defendants violated his

Fourteenth    Amendment     equal    protection   guarantee     by   favoring

adherents of other religions over him and the members of the YEA.

To succeed on his Equal Protection claim, Adkins “must prove

purposeful discrimination resulting in a discriminatory effect

among persons similarly situated.”19           “However, the Fourteenth

Amendment does not demand ‘that every religious sect or group

within a prison —— however few in numbers —— must have identical

facilities or personnel.’”20 We have held that Turner applies to

equal protection claims.21

     Adkins    has   failed   to    provide   anything   more    than   bald,

unsupported, conclusional allegations that defendants purposefully

discriminated against him.          To hold meetings at Coffield, every

religious group (with the exception of the Muslims whose situation

is governed by a separate court order) is required to have outside

volunteers present. The one concern raised by the evidence is that

volunteers for the YEA are not being permitted to lead meetings

following training but that volunteers for other similarly situated


     19
        Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992)
(citing McCleskey v. Kemp, 481 U.S. 279 (1987).
     20
       Freeman, 369 F.3d at 862-63 (quoting Cruz v. Beto, 405 U.S.
319, 322 n.2 (1972)).
     21
          See id. at 863.

                                      11
religious groups are allowed to participate. Sanchez expressed a

rationale for the delay in allowing the McEnanys to lead meetings

on their own, however, and stated that they would be allowed to

lead services alone after attending several meetings with Healan.

We affirm the dismissal of Adkins’s equal protection claim.

D.    RLUIPA CLAIM

      Adkins insists that his inability to assemble on every Sabbath

and every YEA holy day “substantially burdens” the practice of his

religion, in violation of the RLUIPA.       The RLUIPA was adopted by

Congress in response to the Supreme Court’s decisions in Employment

Division, Department of Human Resources v. Smith22 and City of

Boerne v. Flores.23    Prior to Smith, the Supreme Court had employed

a    “compelling     state   interest”   standard   for   testing   the

constitutional validity of laws of general applicability that

affect religious practices.24 Government actions that substantially

burdened a religious practice had to be justified by a compelling

governmental interest.25     In Smith, the Court changed course when

      22
           494 U.S. 872 (1990).
      23
           521 U.S. 507 (1997).
      24
       See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v.
Yoder, 406 U.S. 205 (1972).
      25
         Sherbert, 374 U.S. at 402-403.        Although Sherbert
established the general test for free exercise challenges, the
Court distinguished the prison context in Turner and O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987).        Turner and O’Lone
recognized that, although inmates retain their free exercise
rights, incarceration necessarily limits them.    See O’Lone, 482
U.S. at 348. The burden on the government to defend its actions is

                                   12
it ruled that laws of general applicability that only incidentally

burden religious conduct do not offend the First Amendment.26

Congress sought to reinstate the pre-Smith standard by enacting the

Religious Freedom Restoration Act (“RFRA”).27    In City of Boerne,

however, the Supreme Court invalidated the RFRA as it applied to

states and localities, holding that the statute exceeded Congress’s

remedial powers under Section 5 of the Fourteenth Amendment.28

Congress responded to City of Boerne by enacting the RLUIPA in

September 2000. The RLUIPA is largely a reprisal of the provisions

of the RFRA, but its scope is limited to laws and regulations that

govern (1) land use and (2) institutions such as prisons that

receive federal funds.29

     As always, we begin our review with the language of the

statute.30    The relevant section of the RLUIPA states:

             (a) General rule




substantially less demanding when the prima facie constitutional
claim has been made by a prisoner challenging prison policy,
compared to similar claims outside the prison context. See id. at
349.
     26
          See 494 U.S. at 884-85.
     27
          42 U.S.C. §§ 2000bb, et seq.
     28
          See 521 U.S. at 532-36.
     29
          See 42 U.S.C. § 2000cc et seq.
     30
       Coserv Ltd. Liability Corp. v. Southwestern Bell Telephone
Co., 350 F.3d 482, 486 (5th Cir. 2003).


                                    13
           No government shall impose a substantial burden on the
           religious exercise of a person residing in or confined to
           an institution . . . even if the burden results from a
           rule of general applicability, unless the government
           demonstrates 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.31

Initially, it falls to the plaintiff to demonstrate that the

government practice complained of imposes a “substantial burden” on

his religious exercise.32     This requires the court to answer two

questions: (1) Is the burdened activity “religious exercise,” and

if so (2) is the burden “substantial”?

     The   RLUIPA   defines   “religious     exercise”   to   include   “any

exercise of religion, whether or not compelled by, or central to,




     31
        42 U.S.C. § 2000cc-1 (emphasis added). The section only
applies when “the substantial burden is imposed in a program or
activity that receives Federal financial assistance” or “the
substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several
States, or with Indian tribes.” Id. In his amended complaint,
Adkins alleged that the TDCJ accepts federal funds. As defendants
have not challenged this assertion, we proceed under the assumption
that the TDCJ does accept federal funds.
     32
       The plaintiff has the burden of persuasion on whether the
challenged   government   practice   substantially   burdens   the
plaintiff’s exercise of religion. Once the plaintiff establishes
this, the government bears the burden of persuasion that
application of its substantially burdensome practice is in
furtherance of a compelling governmental interest and is the least
restrictive means of furthering that interest. See 42 U.S.C. §
2000cc-2; 146 Cong. Rec. S7776 (July 27, 2000).

                                   14
a system of religious belief.”33           This broad definition evinces

Congress’s intent to expand the concept of religious exercise that

was used by courts in identifying “exercise of religion” in RFRA

cases.34   The activities alleged to be burdened in this case —— YEA

Sabbath and holy     day gatherings —— easily qualify as “religious

exercise” under the RLUIPA’s generous definition, requiring that we

answer the second question, whether the government practice in

question    places   a   “substantial     burden”   on   Adkins’s   religious

exercise.

     What constitutes a “substantial burden” under the RLUIPA is a

question of first impression in this circuit.35 The RLUIPA does not

     33
          42 U.S.C. § 2000cc-5(5).
     34
        Under the RFRA, many courts required the religious exercise
burdened to be “central” to the religion. See, e.g., Weir v. Nix,
114 F.3d 817, 820 (8th Cir. 1997); Abdur-Rahman v. Mich. Dept. of
Corrections, 65 F.3d 489, 492 (6th Cir. 1995); Werner v. McCotter,
49 F.3d 1476, 1480 (10th Cir. 1995); Bryant v. Gomez, 46 F.3d 948,
949 (9th Cir. 1995). The RFRA was amended by the RLUIPA’s enacting
legislation to incorporate the same definition for “exercise of
religion” as “religious exercise” under the RLUIPA. 42 U.S.C. §
2000bb-2, as amended by Religious Land Use and Institutionalized
Persons Act of 2000, Pub. L. No. 106-274, § 7, 114 Stat. 803
(2000).    Prior to amendment, the RFRA defined “exercise of
religion” as “the exercise of religion under the First Amendment to
the Constitution.”
     35
        In Diaz v. Collins, we considered whether a substantial
burden was placed on a prisoner’s Native American religious
exercise in violation of the RFRA. 114 F.3d 69 (5th Cir. 1997).
Without defining the term, we concluded that circumscribing the use
of a medicine bag and headband did not rise to the level of a
“substantial burden” but grooming regulations did work a
substantial hardship on the prisoner’s Native American religious
practice. Id. at 72-3. Although we did not define “substantial
burden,” in reaching our conclusions we cited to the Tenth Circuit
definition enunciated in Werner, 49 F.3d at 1480.

                                     15
contain a definition of “substantial burden,” and the courts that

have assayed it are not in agreement.          Despite the RLUIPA’s

eschewing the requirement of centrality in the definition of

religious exercise,36 the Eighth Circuit adopted the same definition

that it had employed in RFRA cases, requiring the burdensome

practice to affect a “central tenet” or fundamental aspect of the

religious belief.37    The Seventh Circuit, in contrast,   abandoned

the definition of “substantial burden” that it had used in RFRA

cases, holding instead that, “in the context of RLUIPA’s broad

definition of religious exercise, a...regulation that imposes a

substantial burden on religious exercise is one that necessarily

bears direct, primary, and fundamental responsibility for rendering

religious exercise...effectively impracticable.”38 Neither did the

     36
          See text accompanying n. 33 supra.
     37
        See Murphy v. Missouri Dept. Of Corr., 372 F.3d 979, 988
(8th Cir.) cert. denied, 73 U.S.L.W. 3297 (U.S. Nov. 15, 2004) (No.
04-6293) (“To constitute a substantial burden, the government
policy or actions: 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 adherence to his or her faith; or
must deny a [person] reasonable opportunities to engage in those
activities that are fundamental to a [person’s] religion.’”); see
also Henderson v. Kennedy, 265 F.3d 1072, 1074 (D.C. Cir. 2001)
(denying a petition for rehearing in a suit under the still valid
portion of the RFRA, the court stated that the amendments to the
definition of “religious exercise” did not alter the propriety of
inquiring into the importance of a religious practice when
assessing whether a substantial burden exists).
     38
       Civil Liberties for Urban Believers v. City of Chicago, 342
F.3d 752, 761 (7th Cir. 2003), cert. denied, 124 S.Ct. 2816 (2004)
(abandoning the definition in Mack v. O’Leary, 80 F.3d 1175 (7th
Cir. 1996).

                                  16
Ninth Circuit retain the definition of “substantial burden” that it

had employed in RFRA cases, which required interference with a

central    religious   tenet   or   belief.      Turning      to   Black’s   Law

Dictionary and Merriam-Webster’s Collegiate Dictionary, the Ninth

Circuit defined a “substantial burden” as one that imposes “a

significantly great restriction or onus upon such exercise.”39               The

most recent appellate interpretation of the term under the RLUIPA

is that of the Eleventh Circuit, which declined to adopt the

Seventh Circuit’s definition, holding instead that a “substantial

burden” is one that results “from pressure that tends to force

adherents to forego religious precepts or from pressure that

mandates religious conduct.”40

     The RLUIPA’s legislative history, although sparse, affords

some guidance:    “[Substantial burden] as used in the Act should be

interpreted by reference to Supreme Court jurisprudence.”41                  And,

indeed,    on   several   occasions,      the   Court   has    articulated     a

definition of “substantial burden.”

     The plaintiff in Sherbert v. Verner was denied unemployment

compensation benefits following the termination of her employment



     39
       San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1034 (9th Cir. 2004) (not following the definition in Bryant
v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995)).
     40
       Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1227 (11th Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3238
(U.S. Oct. 1, 2004) (No. 04-469).
     41
          146 Cong. Rec. S7776 (July 27, 2000).

                                     17
for refusing to work on Saturday, her Sabbath, coupled with her

refusal to accept other employment because all identifiable job

openings would have required her to work on Saturdays.42         The Court

held that a burden had been placed on the plaintiff’s free exercise

of her religion because the “ruling forces her to choose between

following the precepts of her religion and forfeiting benefits, on

the one hand, and abandoning one of the precepts of her religion in

order to accept work, on the other hand.”43

     Similarly, the plaintiff in Thomas v. Review Board of the

Indiana    Employment    Security   Division   was   denied   unemployment

compensation benefits after he was forced to quit his job following

transfer to his employer’s weapons production division; his faith

as a Jehovah’s Witness forbade him to engage directly in the

production of arms.44      The Court held that the denial of benefits

placed a substantial burden on the plaintiff’s practice of his

faith:

     Where the state conditions receipt of an important
     benefit upon conduct proscribed by a religious faith, or
     where it denies such a benefit because of conduct
     mandated by religious belief, thereby putting substantial
     pressure on an adherent to modify his behavior and to
     violate his beliefs, a burden upon religion exists.45




     42
          374 U.S. 398 (1963).
     43
          Id. at 1794.
     44
          450 U.S. 707 (1981).
     45
          Id. at 717-18.

                                     18
       In Lyng v. Northwest Indian Cemetery Protective Association,

the government wanted to build a road through an area of public

land    that    was       used   by    several     Native   American     tribes.        The

plaintiff,       a    Native       American      organization,      sought     to   block

construction         of    the    road,   arguing,     among     other    things,   that

construction of the road would substantially burden the practice of

their faith.46            The Court, in denying these plaintiffs’ First

Amendment claim, rejected any reading of Thomas or Sherbert that

implied that “incidental effects of government programs, which may

make it more difficult to practice certain religions but which have

no tendency to coerce individuals into acting contrary to their

religious beliefs, require government to bring forward a compelling

justification for its otherwise lawful actions.”47

       Our consideration of the plain wording of the statute, its

legislative history, the decisions of other circuits, and the

Supreme Court’s pronouncements on the meaning of “substantial

burden” in other contexts leads us to hold that, for purposes of

applying the         RLUIPA       in   this   circuit,      a   government     action    or

regulation creates a “substantial burden” on a religious exercise

if it truly pressures the adherent to significantly modify his

religious       behavior         and   significantly        violates     his   religious

beliefs.       And, in line with the foregoing teachings of the Supreme


       46
            485 U.S. 439 (1988).
       47
            Id. at 450-51.

                                              19
Court,     the    effect    of   a   government       action   or   regulation   is

significant when it either (1) influences the adherent to act in a

way that violates his religious beliefs, or (2) forces the adherent

to   choose      between,   on   the   one    hand,    enjoying     some   generally

available, non-trivial benefit, and, on the other hand, following

his religious beliefs.48             On the opposite end of the spectrum,

however, a government action or regulation does not rise to the

level of a substantial burden on religious exercise if it merely

prevents the adherent from either enjoying some benefit that is not

otherwise generally available or acting in a way that is not

otherwise generally allowed.49           We emphasize that no test for the

presence of a “substantial burden” in the RLUIPA context may

require that the religious exercise that is claimed to be thus

burdened be central to the adherent’s religious belief system.

This is because, as noted above, the RLUIPA defines religious

exercise as “any exercise of religion, whether or not compelled by,

or central to, a system of religious belief.”50                Nevertheless, the

Supreme Court’s express disapproval of any test that would require

a court to divine the centrality of a religious belief51 does not


      48
           See Sherbert and Thomas.
      49
           See Lyng.
      50
           See 42 U.S.C. § 2000cc-5(5)(emphasis added).
      51
         See Lyng, 485 U.S. at 457-58 (criticizing the dissent’s
proposed test which would require a court to evaluate the
“centrality” of a religious belief); see also Smith, 494 U.S. at
886-87 (“It is no more appropriate for judges to determine the

                                         20
relieve a complaining adherent of the burden of demonstrating the

honesty and accuracy of his contention that the religious practice

at issue is important to the free exercise of his religion.

     In sum, we are satisfied that the position we adopt today is

faithful   to    both   the   text    of    the   RLUIPA   and   Supreme     Court

precedent. Declining to inquire into whether a practice is central

to an adherent’s religion avoids the greater harm, identified in

Lyng and in the text of the Smith opinion, of having courts presume

to determine the place of a particular belief in a religion.                 These

precedents      instruct   that,     like    determinations      regarding    the

importance of ideas in the free speech field, judges are ill-suited

to resolve issues of theology in myriad faiths.                  If refusing to

inquire into the centrality of a religious practice should lead to

undesirable results, Congress is the appropriate body to address

that problem,52 particularly in light of its own declaration in the


‘centrality’ of religious beliefs before applying a ‘compelling
interest’ test in the free exercise field, than it would be for
them to determine the ‘importance’ of ideas before applying the
‘compelling interest’ test in the free speech field.”)
     52
       Our entire discussion assumes that the RLUIPA is otherwise
constitutional; we have not been asked to rule on the
constitutionality of the statute. The question is currently the
cause of a circuit split.       Compare Benning v. Georgia, No.
04-10979, 2004 WL 2749172 (11th Cir. Dec. 02, 2004) (holding that
the RLUIPA is within Congress's spending clause powers, and that it
does not violate the Establishment Clause); Madison v. Riter, 355
F.3d 310 (4th Cir. 2003) (finding the RLUIPA does not violate the
Establishment Clause); Charles v. Verhagen, 348 F.3d 601 (7th Cir.
2003) (holding that the RLUIPA is within Congress’s spending clause
powers, and that it does not violate the Establishment Clause);
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (same); with
Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted,

                                       21
text of the RLUIPA that centrality is not an element of religious

exercise for purposes of this Act.

     We recognize that our test requires a case-by-case, fact-

specific inquiry to determine whether the government action or

regulation   in   question   imposes   a    substantial   burden   on   an

adherent’s religious exercise; however, we perceive this kind of

inquiry to be unavoidable under the RLUIPA and the circumstances

that it addresses.     This is why we make no effort to craft a

bright-line rule.

     Turning to the instant case, the evidence shows that Adkins

was and is prevented from congregating with other YEA members on

many Sabbath and YEA holy days.        This results, however, from a

dearth of qualified outside volunteers available to go to Coffield

on every one of those days, not from some rule or regulation that

directly prohibits such gatherings.        With the exception of Muslims

who are subject to a special court order, every religious group at

Coffield is required to have a qualified outside volunteer present

on such occasions. Presently, Adkins and the other YEA members are

permitted to gather any time that Healan is available to go to

Coffield; and Sanchez testified at the Flowers hearing that Adkins

and the other YEA members would be allowed to observe every YEA

Sabbath and every YEA holy day on which a free world volunteer is

present.


73 U.S.L.W. 3229 (U.S. Oct. 12, 2004) (No. 03-9877) (holding the
RLUIPA an unconstitutional violation of the Establishment Clause).

                                  22
     The requirement of an outside volunteer —— which is a uniform

requirement for all religious assemblies at Coffield with the

exception of Muslims —— does not place a substantial burden on

Adkins’s religious exercise.    We admit to lingering concern about

the prison authorities’ refusal to allow the McEnanys to serve as

volunteers so that Adkins and the other YEA members at Coffield

could gather on days that Healan is not present, which in turn

prevents YEA members from congregating on the same basis as other

similarly situated religious groups.    Our concerns are alleviated,

however, by Sanchez’s promise that the McEnanys will be allowed to

serve as volunteers after they attend services with Healan a few

times to familiarize themselves with the process of conducting such

meetings. All things considered, we are convinced that the acts of

the defendants have not placed a substantial burden on Adkins’s

free exercise of his YEA religion, within the contemplation of the

RLUIPA.

E.   Denial of Adkins’s Motion to Subpoena Witnesses

     Adkins’s final claim is that the magistrate judge erred in

refusing to allow him to subpoena defendant Reynolds, Chaplain

Edwards, and inmates Bundage and Ingram.       “A district court’s

refusal to issue a subpoena is reviewable only for abuse of

discretion.”53   Before we will hold that the district court abused

its discretion by refusing to issue a subpoena, the proponent of


     53
          Gibbs v. King, 779 F.2d 1040, 1047 (5th Cir. 1986).

                                  23
the subpoena must show that relevant testimony was excluded, or

that a substantial need for a witness’s trial testimony existed.54

Much of the information that Adkins claims the witnesses would

testify to would be speculative or repetitive. Although it appears

from Ingram’s affidavit that he had some personal knowledge of the

use of the chapel, this was not made at all clear in Adkins’s

subpoena request,     so   the   magistrate   judge   did   not   abuse   his

discretion in refusing the subpoena request.          We perceive no abuse

of discretion here.

                            III.   CONCLUSION

     For the foregoing reasons, the district court’s rulings and

its dismissal of Adkins’s claims, are, in all respects,

AFFIRMED.




     54
          See Cupit v. Jones, 835 F.2d 82, 86-87 (5th Cir. 1987).

                                    24
