O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)

Religious freedom constitutes one of the most valued civil liberties, and no less so among inmates. Incarceration, however, has historically imposed numerous restrictions on their practice of religion. Some restrictions have ample justification as necessary security measures; other restrictions have rested on prejudice, ignorance, or exaggerated security concerns. Aggrieved inmates could not secure relief from onerous and arbitrary restrictions until the federal judiciary abandoned its self-imposed and aptly named ‘‘handsoff’’ doctrine. In 1972 the Supreme Court in Cruz v. Beto invited judicial protection of inmates’ religious freedom. Twenty-five years would pass before the Court in O’Lone v. Shabazz established a governing standard for determining which restrictions on prisoners’ free exercise rights violated the First Amendment. Left to their own devices in the interim, the U.S. courts of appeals had divided over a governing standard.

The Shabazz plaintiffs complained about prison policies that indirectly barred their attendance at Jumu’ah, a Muslim congregational service held inside the walls of their New Jersey prison on Fridays. Because of their minimum security status, the plaintiffs worked outside the prison walls. In turn, their work status barred them from returning to the facility before the close of the workday and, consequently, during or before the religious services. The trial court found no First Amendment violation, but the court of appeals reversed and remanded because defendant prison officials failed to address alternative methods for accommodating the inmates’ attendance at the Jumu’ah services. Siding with prison officials, the Supreme Court in Shabazz reversed the circuit court ruling. A five-to-four Court found that the challenged restrictions on prisoners’ free exercise of religion did not violate the Constitution.

To resolve this free exercise claim, the Shabazz Court used the test employed in Turner v. Safley (1987) to permit severe limitations on inmate-toinmate correspondence but strike down a ban on the marriage of inmates. By the Shabazz Court’s own admission, it selected the Turner test to further its policy of ‘‘ensur[ing] that courts afford appropriate deference to prison officials.’’ In stark contrast to the close scrutiny usually applied to First Amendment infringements in the civilian community, the standard employed in Shabazz requires restraints on free exercise to be reasonably related to legitimate prison goals. To make this determination, the Shabazz Court considered four factors delineated earlier in Turner. The first addresses whether the rule or policy bears a ‘‘rational connection’’ to a government interest that is both legitimate and neutral regarding religion. If the plaintiff demonstrates the absence of a connection, the inquiry ceases and the challenged rule or policy violates the free exercise clause. If the connection does exist, a court balances the remaining factors: whether there exists an alternative means for the plaintiffs to exercise their religious beliefs; the impact on prison staff, inmates, and penal resources of accommodating the asserted right; and the existence of a de minimis alternative to the challenged rule or policy.

In its application of the four-part reasonableness test, the Court largely adopted the arguments of the defendant prison officials. First, assigning inmates to outside work details and forbidding their return to the prison before the end of their workday eased overcrowding, prevented congestion at the prison’s main entrance, and instilled rehabilitative work habits. Second, prison officials had made various accommodations, such as a pork-free diet, to enable the affected Muslim inmates to otherwise practice their faith. Third, accommodating the plaintiffs’ asserted right to attend religious services would lead to charges of favoritism and tax the already overburdened staff. Fourth, there were no easy, de minimis alternatives to the challenged prison regulations.

The impact of Shabazz has been diminished by congressional legislation safeguarding religious practices. Enacted in 1993, the Religious Freedom Restoration Act (RFRA) prohibited the federal government and the states from substantially burdening religious practices unless they employed the least restrictive means in furtherance of a Compelling State Interest. The Supreme Court in City of Boerne v. Flores (1997) ruled theRFRAunconstitutional under the separation of powers doctrine in its application to the states. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which in relevant part reimposes the Compelling State Interest/least restrictive means standard on state governments when they substantially burden the religious freedom of prisoners and other institutionalized persons. RLUIPA has thus far survived constitutional challenge, including on Establishment Clause grounds before the Supreme Court in Cutter v. Wilkinson (2005).

Notwithstanding the enactment of RFRA and RLUIPA, Shabazz presaged a broad application of the reasonableness standard formulated in Turner v. Safley. The Turner Court had indicated that its reasonableness standard should be used whenever prison rules and regulations are challenged. In Shabazz, the Court took the first of several new steps in that direction by extending the reach of the reasonableness standard to free exercise claims. Subsequently, the Court used this governing standard to address a host of alleged rights violations, including prisoners’ claims arising from severely restricted prison visitation, censorship of books, and involuntary medical treatment with antipsychotic drugs.

JAMES E. ROBERTSON

References and Further Reading

• Blischak, Matthew P., O’Lone v. Estate of Shabazz: The State of Prisoners’ Religious Free Exercise Rights, American University Law Review 37 (Winter 1988): 453–86.
• Branham, Lynn S., Go Sin No More: The Constitutionality of Governmentally Funded Faith-Based Prison Units, University of Michigan Journal of Law Reform 37 (Winter 2004): 291–352.
• Buss, William G., An Essay on Federalism, Separation of Powers, and the Demise of the Religious Freedom Restoration Act, Iowa Law Review 83 (January 1998): 391–434.
• Chiu, Anne Y., When Prisoners Are Weary and Their Religious Exercise Burdened, RLUIPA Provides Some Rest for Their Souls, Washington Law Review 79 (August 2004): 999–1027.
• Clear, Todd R., Patricia L. Hardyman, Bruce Stout, Karol Lucken, and Harry R. Dammer. ‘‘The Value of Religion in Prison.’’ Journal of Contemporary Criminal Justice 16, no. 1 (2000): 53–75.
• Developments in the Law—In the Belly of the Whale: Religious Practice in Prison, Harvard Law Review 115 (May 2002): 1891–913.
• Giles, Cheryl Dunn, Turner v. Safley and Its Progeny: A Gradual Retreat to the ‘‘Hands-Off’’ Doctrine?, Arizona Law Review 35 (Spring 1993): 219–36.
• Laycock, Douglas, and Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act’’ Texas Law Review 73 (December 1994): 209–45.
• McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (May 1990): 1409–517.
• McNeil, Matthew, The First Amendment Out On Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence, Ohio State Law Journal 65 (2004): 1021–56.
• Mushlin, Michael B. Rights of Prisoners, vol. 1, 3d ed. St. Paul, MN: West Group, 2002.
• Pepper, Stephen, Taking The Free Exercise Clause Seriously, Brigham Young University Law Review 1986 (1986): 299–336.
• Solove, Daniel J., Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, Yale Law Journal 106 (November 1996): 459–70.

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Cruz v. Beto, 405 U.S. 319 (1972)
• Cutter v. Wilkinson, 544 U.S. ___ (2005)
• Religious Freedom Restoration Act of 1993, 42 U.S.C. Sections 2000bb–2000bb-4 (2000)
• Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. Section 2000cc et seq.
• Turner v. Safley, 482 U.S. 78 (1987)

See also Equal Protection Clause and Religious Freedom; Establishment Clause (I): History, Background, Framing; Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clauses; Free Exercise Clause (I): History, Background, Framing; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Prisoners and Free Exercise Clause Rights; Religious Freedom Restoration Act; Religious Land Use and Institutionalized Persons Act of 2000; Turner v. Safley, 482 U.S. 78 (1987)