Thanks to Religion Clause for bringing this story to my attention. The Justice Department has filed a brief on behalf of two Native American inmates in a South Dakota prison. Citing the Religious Land Use and Institutionalized Persons Act, they  are challenging the state's removal of a religious exemption from the general ban on tobacco use that was in place for several years.

State officials claim that the ban does not substantially burden the inmates' religious exercise, and that the exemption was being abused by. The Justice Department filing only explicitly takes issue with the first argument, countering that it improperly places the state in the business of formulating and evaluating religious doctrine.

Defendants’ argument, like the holdings of the courts upon which the argument depends, requires a determination about the centrality or importance of tobacco use in Native American religious tradition, a determination that is expressly forbidden by RLUIPA and Supreme Court precedent...[C]ourts are not to judge the merits or centrality of specific religious practices....The only appropriate avenue for judicial inquiry is whether an institution’s policy interferes with an exercise of a religion. Whether the practice is universal to adherents of a particular faith is of no consequence.

Here, importantly, the Justice Department reiterates that RLUIPA is a broad protection of religious liberty and should be applied as such. A powerful statement about an important statutory safeguard.

The DOJ leaves some room for the state to still argue that the burden placed on the inmates' religion meets a compelling state interest and is the least restrictive possible way to achieve that goal, but it may be an uphill battle. Other facilities have managed a religious exemption to tobacco bans. Following their lead would seem to be a less restrictive approach.

Stay tuned.