A federal judge on Tuesday hinted that a Colorado inmate may have a legitimate claim of religious discrimination against the state Department of Corrections, but stated that a court order would not be the ideal way to allow Russell M. Boles access to the diet of his faith.

Boles, an Orthodox Jewish man incarcerated at Sterling Correctional Facility, has alleged that the meals he is served are not prepared in a manner that adheres to his sincerely-held religious beliefs. Although the government has deemed his complaints “minor,” Boles found the meals to be “swine slop” and “unacceptable by Jewish law.”

U.S. Magistrate Judge Scott T. Varholak asked during a hearing that both parties attempt to reach a resolution outside of court. While he acknowledged that the federal appeals court that covers Colorado has ruled in favor of prisoners making similar claims in the past, he also seemed unsure what form judicial intervention might take.

“This is a very difficult issue in that I think there is 10th Circuit authority that supports, certainly, the idea that if an individual’s religious dietary practices are being violated here, relief is appropriate,” Varholak said. “The issue I have here is I’m not sure the court is the best vehicle to try and craft this injunctive relief.”

Boles filed suit against the department and several employees in April 2019, alleging multiple violations of his religious freedom rights. He asserted he was denied kosher meals, suffered an improper cancelation of his religious diet, and that the preparation and composition of his meals does not comport with his faith’s dictates. In July of this year, Boles moved for a court injunction and suggested ways for the Department of Corrections to “minimize Gentile contact with kosher food” or to enter into contracts with kosher catering services around Denver.

The department argued that Boles’ lawsuit against the state has been pending for more than two years and nothing had changed with the preparation of his food. As such, the attorney general’s office contended, he has not shown he would suffer an irreparable harm in the absence of a near-term court injunction.

“Your response,” retorted Varholak in the hearing, “is, ‘His rights have been violated for a really long time so that doesn’t show irreparable harm?’ That’s not really persuasive is it?”

Earlier this year, the U.S. Court of Appeals for the 10th Circuit issued a flurry of religious freedom decisions implicating the rights of Christian, Muslim and Messianic Jewish people in the criminal justice system. One attorney called the collection of rulings a “strong statement by the 10th Circuit that the Free Exercise Clause is not something to be tossed away, even in the prison context.”

Boles relied heavily on a 2002 decision in which the 10th Circuit rebuffed the Department of Corrections’ argument that the government did not have to make a kosher diet available and, if it did, the prison could charge inmates for it.

“This circuit recognizes that prisoners have a constitutional right to a diet conforming to their religious beliefs,” the appellate court ruled in Beerheide v. Suthers. Although the 10th Circuit acknowledged that constitutional rights may sometimes give way for the sake of prison administration or safety, the state’s proposed alternatives of charging Orthodox Jewish inmates money or asking outside groups to provide kosher meals were not reasonable.

Boles described to Varholak how his beliefs about a kosher diet governed not just the ingredients of his meals, but the source, storage and preparation.

“A Jew does not necessarily have to do everything, but a Jew does have to be present and at least participate minimally in the preparation,” he said. “Food cooked by gentiles is not permitted. Food in bulk that is handled by gentiles is not permitted.”

One of the defendants in the lawsuit, Rabbi Yisroel Rosskamm, allegedly approved of the department’s food and food processing. Rosskamm is a supervisor with Scroll K, which identifies as a consultant to the Colorado and Nevada department of corrections that certifies and monitors kosher programs. In his motion opposing Boles’ request for a preliminary injunction, Roskamm said the court should avoid inserting itself in a purely religious disagreement between Jewish individuals over the meaning of kosher.

Varholak will issue a written recommendation on whether to grant Boles an injunction. U.S. District Court Judge Regina M. Rodriguez, who has been assigned to the case, will then review the recommendation and issue an order. The magistrate judge also indicated a willingness to appoint a pro bono attorney for Boles to assist in this stage of his lawsuit.

The case is Boles v. Colorado Department of Corrections et al.