BRETT BARROUQUERE
Associated Press

LOUISVILLE, Ky. (AP) — Three Kentucky death row inmates should get another chance to show they have the right to a sweat lodge, powwow and traditional foods to conduct Native American religious ceremonies behind bars at the prison, a federal appeals court ruled on Friday.

The U.S. 6th Circuit Court of Appeals in Cincinnati ordered part of a lawsuit brought by six-time convicted killer Robert Foley, two-time convicted killer Roger Dale Epperson and Vincent Stopher, condemned for the death of a sheriff’s deputy in Jefferson County, reinstated after concluding that state officials failed to show compelling reasons for denying the requests.

The appeals court also turned away a related bid by two condemned inmates to get monetary damages from prison officials for changing the rules on visits by pastors to those on death row.

U.S. District Judge Thomas B. Russell ruled in 2013 that the prison’s rejection of the requests were necessary for the security of inmates and others.

The case put forth the questions of whether inmates should have access to several Native American traditions for a faith-based once-a-year powwow and if they should be able to collect money damages from prison officials.

“The answers … are yes and no,” Judge Jeffrey Sutton wrote for the three-judge panel.

The inmates sued under the federal Religious Land Use and Institutionalized Persons Act. It prohibits state and local governments from placing a substantial burden on the religious exercise of inmates unless they do so in the least restrictive way and show a compelling interest for it.

Sutton, joined by judges R. Guy Cole and Robert H. Cleland found that the state’s denial based on not having approved any similar request in the past wasn’t a valid reason for rejecting this arrangement.

“That a request to accommodate a religious practice has no precedent cannot by itself justify the warden’s action,” Sutton wrote.

And, reasons given for the first time during the lawsuit “ought to come with a truth-in-litigating label,” requiring officials to say whether the new explanations were motivated by the lawsuit itself, Sutton wrote.

The simplest way to determine if and how Native American ceremonies could be held would be to look at how other states have dealt with the requests — something Kentucky did not do, Sutton wrote.

Once that is done, prison officials may try to determine how much an inmate’s beliefs align with the practices of the professed religion, Sutton said.

But prison officials may not do as they have done in the past — rely on a federal Bureau of Prisons manual to determine what could be accommodated, Sutton wrote.

“The prison is free to test the sincerity of an inmate’s religious beliefs or to show that the least restrictive means of satisfying a compelling government interest permits it to regulate a faith-based practice,” Sutton wrote. “But, it may not use a manual written by government officials to allow other government officials to decide on that basis alone that a practice is not central to this or that faith.”

The court upheld a decision to deny monetary damages to inmates Randy Haight, who is awaiting execution for killing two people in 1985, and Gregory Wilson, condemned for raping and killing a woman in northern Kentucky in 1987.

The two men sued after the prison system changed its policy in 2010 requiring inmates to place pastors on one of three slots on an inmate’s visitation list to meet with them one-on-one. The policy has since been changed to allow more than one inmate to place a pastor on a visitor list, allowing them to visit with as many inmates as possible as long as they receive prior approval from the warden.

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