UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JAMES HARRISON FOX; SCOTT DAVID PERREAULT, │ Plaintiffs-Appellants, │ > No. 21-1694 │ v. │ │ HEIDI E. WASHINGTON, Director of the Michigan │ Department of Corrections (MDOC), │ Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:13-cv-01003—Phillip J. Green, Magistrate Judge.

Argued: April 5, 2023

Decided and Filed: June 26, 2023

Before: SUTTON, Chief Judge; GRIFFIN and STRANCH, Circuit Judges. _________________

COUNSEL ARGUED: Breia Lassiter, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Appellants. Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Daniel E. Manville, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Appellants. Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. No. 21-1694 Fox, et al. v. Washington Page 2

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OPINION _________________

GRIFFIN, Circuit Judge.

Plaintiffs are adherents to Christian Identity, a religion that is “explicitly racist.” Fox v. Washington, 949 F.3d 270, 273 (6th Cir. 2020). In its view, Caucasians are “God’s chosen people.” Id. at 274 (internal quotation marks omitted). After the Michigan Department of Corrections refused to recognize Christian Identity as a religion for purposes of the Michigan prison system, plaintiffs brought this declaratory judgment action under the Religious Land Use and Institutionalized Person Act of 2000, 42 U.S.C. § 2000cc et seq. (RLUIPA), requesting that the Department be directed to recognize Christian Identity as a religion. The district court affirmed the Department’s denial, and plaintiffs appealed.

In Fox, we held that plaintiffs satisfied the first two parts of the three-part RLUIPA test, but we remanded to the district court for the Department to sustain its “heavy burden” under a strict scrutiny analysis to show that its refusal to recognize Christian Identity as a religion furthered a compelling governmental interest, and, if so, that its denial was the least restrictive means of furthering such a compelling interest. 949 F.3d at 283.

On remand, the district court concluded that the Department met its burden and that refusing to recognize Christian Identity was the least restrictive means to ensure its compelling governmental interest. We disagree and hold that the Department failed to satisfy its burden of showing that its denial of recognition was the least restrictive means of furthering a compelling governmental interest. Alternatives, other than to simply accept or reject recognition, were available and included in the Department’s policies, but never considered by it.

Accordingly, we reverse the judgment of the district court and remand for entry of judgment in plaintiffs’ favor. No. 21-1694 Fox, et al. v. Washington Page 3