Prisoners and Free Exercise Clause Rights

Prisoners’ freedom to practice their religious beliefs confronts two distinguishing features of imprisonment. First, imprisonment necessarily entails limitations on the rights of inmates. Second, having isolated prisoners from the civilian community, imprisonment renders them dependent on prison staff to accommodate their religious beliefs.

The historical and criminological foundation of the American prison rested in significant part on the exercise of religion. Benjamin Rush—the ‘‘father’’ of the American penitentiary—sought to impart Christian love through a disciplined prison regime. Rush and his allies believed that religious instruction, alongside silence and labor, would return offenders to moral virtue. His prototype prison, Philadelphia’s Walnut Street Jail of the 1790s, prophetically demonstrated that order could not beget virtue: noble aspirations gave way to the prison’s persistent function: warehousing the rabble. The promise of the prison as a rehabilitative institution would be reborn on repeated occasions during the nineteenth and twentieth centuries, but prison staff and penal policymakers came to envisage a largely secular prison.

The drafting and ratification of the Bill of Right, despite its First Amendment guarantee of the free exercise of religion, did little to benefit prisoners with faiths other than the mainstream Protestant denominations. Historically, prison officials have selectively accommodated the religious beliefs of their wards, with Jews, Catholics, Muslims, and other religious ‘‘outsiders’’ experiencing unfair treatment. The complaint of a Muslim plaintiff in Pierce v. LaValle (293 F.2d 233, 2d Cir., 1961, on remand, 212 F. Supp. 865, N.D.N.Y. M 1962, aff’d per curiam, 319 F.2d 844, 2d Cir. 1963) that prison staff denied him a Koran as well as access to a spiritual advisor represented the norm, not the exception.

Until the late 1960s, federal courts refused to safeguard inmates’ civil liberties, including their rights under the free exercise clause. Judges advanced several explanations for keeping their ‘‘hands off’’ prisoners’ civil rights actions, including judges’ lack of expertise in penal issues and the potential for undermining the authority of correctional officers.

Inmates experiencing religious oppression figured prominently in the collapse of the hands-off doctrine. Litigation on their behalf reached the Supreme Court in Cruz v. Beto, 405 U.S. 319 (1972). A Buddhist inmate had complained that Texas prison officials operated a religious program open only to Protestant, Roman Catholic, and Jewish inmates. The Supreme Court ruled that the equal protection clause accorded him a ‘‘reasonable opportunity of pursuing [his] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’’ By implication and in dicta, the Court acknowledged that inmates enjoy free exercise rights. Thereafter, lower federal couts extended the boundaries of prisoners’ free exercise rights to embrace religious dress, diets, assembly, and correspondence and visitation with spiritual advisors.

To secure protection under the free exercise cause, the claimants’ beliefs must be religious in nature and sincerely held. In distinguishing religious beliefs from other discourses, federal courts typically use one of two tests. The ‘‘definition-by-analogy’’ test looks for attributes resembling those of mainstream religions, such as the equivalent of the Bible, clergy, and holidays. This approach employs a content based methodology that disfavors unorthodox beliefs. By contrast, the ‘‘state-of-mind’’ test inquires whether the beliefs in question occupy a place in the claimants’ world view comparable to that of adherents of mainstream religions. Claimants’ characterization of their beliefs as ‘‘ultimate concerns’’ or ‘‘divine commands,’’ however unconventional their content, often satisfy this test.

Courts also determine whether a claimant is sincere. Other motivations include gaining special privileges or concealing illicit activities. Courts have yet to find agreement on a governing test. Case law does suggest two key attributes of sincerity: claimants’ familiarity with their religion’s principal tenets and adherence to the principal tenets.

Securing the protection of the free exercise clause by no means frees inmates from a host of prison rules that directly or incidentally limit the practice of religion. The Supreme Court addressed the scope of prisoners’ free exercise rights in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). At issue were prison rules that had the incidental effect of excluding inmates assigned to working offsite from a Muslim congregational celebration, Jumu’ah, held inside the prison on Fridays. Prison officials countered that overcrowding and staff shortages dictated offsite work crews and that gate congestion as well as other concerns dictated that the work crews not return until the close of the day. The Shabazz Court employed the four-part reasonableness standard first used in Turner v. Safely, 482 U.S. 78 (1987), in which the Court resolved challenges to prison rules forbidding the marriage of inmates and most inmate-to-inmate correspondence. The Turner and Shabazz Courts spoke of the reasonableness standard as a means of ensuring judicial deference to the judgments of prison officials.

The Shabazz Court determined that the plaintiffs’ exclusion from Jumu’ah found support in each of four factors comprising the reasonableness test. The threshold inquiry addressed whether the challenged rule or policy bears a ‘‘rational connection’’ to a government interest that is legitimate and neutral regarding religion. Finding no infirmity in this respect, the Court balanced the three remaining inquires—that is, the availability of alternative means of practicing the asserted right, the impact of accommodating the asserted right of prisoners and prison staff, and whether a ready alternative to the challenged rules can be instituted with little expense and inconvenience.

Complaints that the Supreme Court had underprotected religious freedom in the civilian community led the Congress to enact the Religious Freedom Restoration Act (RFRA) in 1997. In relevant part, it barred the states as well as the federal government from imposing a substantial burden on religious exercises unless doing so advanced a Compelling State Interest through the least restrictive means. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held RFRA unconstitutional in its application to the states. The Court found that the act exceeded Congress’s authority to remedy state-sanctioned discrimination under Article V of the Fourteenth Amendment.

In 2000, Congress drew upon its broad authority under the spending and commerce clauses of the Constitution to pass the Land Use and Institutionalized Persons Act (RLUIPA). In relevant part, it reimposed the Compelling State Interest/least restrictive means standard on the states when they place a ‘‘substantial burden’’ on the exercise of religion by institutionalized persons. The statute is silent on what constitutes such impairment and the case law is divided over whether the affected religious practice must be a central tenet of faith. Case law regards prison security concerns as a compelling government interest under RLUIPA; other penal objectives that would be acceptable under Shabazz, such as administrative and financial considerations, are unlikely to meet this high standard. Similarly, overinclusive restrictions on inmates’ free exercise rights that would be permitted under Shabazz’s reasonableness standard run afoul of RUIPA’s least restrictive means test.

RLUIPA has survived constitutional challenges. Lower federal courts have held that Congress did not exceed its powers under the spending and commerce clauses in enacting RLUIPA. In Cutter v. Wilkinson, 125 S. Ct. 2113 (2005), a unanimous Supreme Court overturned a circuit court ruling that RLUIPA advanced religion in violation of the Establishment Clause. The Cutter Court held that RLUIPA permissibly accommodates institutionalized persons, who must look to government for fulfillment of their religious needs.

Enactment of RFRA and RLUIPA coincided with the growth of privately sponsored religious programming in prisons. Typically grounded in Christian evangelism, faith-based programs such Prison Justice Ministries’ InnerChange Freedom Initiative provide religious instruction, counseling, job training, and postrelease counseling. Critics have argued that such programs provide services and amenities otherwise unavailable to the prison population and thereby favor religion in violation of the First Amendment’s Establishment Clause.

As Justice Brennan observed in his dissenting opinion in Shabazz, prisoners’ ‘‘membership in a spiritual community’’ may well be their ‘‘last source of hope for dignity and redemption.’’ Acquiring that membership through faith-based programs or other religious practices does not necessarily comport with the rulebased, bureaucratic prison where efficiency takes precedence over free exercise rights. Consequently, prisoners’ free exercise rights will continue to require protection, be it statutory or judicial.

JAMES E. ROBERTSON

References and Further Reading

• Blischak, Mathew P., O’Lone v. Estate of Shabazz: The State of Prisoners’ Religious Free Exercise Rights, American University Law Review 37 (Winter 1988): 353–386.
• 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 (2000): 53–75.
• Developments in the Law—In the Belly of the Whale: Religious Practice in Prison, Harvard Law Review 115 (May 2002): 1891–1913.
• Giles, Cheryl Dunn, Turner v. Safley and its Progeny: A Gradual Retreat to the ‘‘Hands-Off’’ Doctrine? Arizona Law Review 35 (Spring 1993): 219–236.
• Laycock, Douglas, and Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, Texas Law Review 73 (December 1994): 209–245.
• McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (May 1990): 1409–1517.
• McKelvey, Blake. American Prisons. Montclair, NJ: Patterson Smith, 1977.
• 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): 1021–1056.
• Meranze, Michael. Laboratories of Virtue. Chapel Hill: University of North Carolina Press, 1996.
• Mushlin, Michael B. Rights of Prisoners, 3rd ed., vol. 1, St. Paul, MN: West Group, 2002, 673–777.
• Pepper, Stephen, Taking the Free Exercise Clause Seriously, Brigham Young University Law Review 1986 (1986): 299–336.
• Rothman, David J. The Discovery of the Refugees-and-the-convention-against-torture.html>Asylum: Social Order and Disorder in the New Republic. Boston: Little, Brown, 1971.
• Solove, Daniel J., Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, Yale Law Journal 106 (November 1996): 459–470.

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, 125 S. Ct. 2113 (2005)
• O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
• Pierce v. LaValle, 293 F.2d 233 (2d Cir. 1961), on remand, 212 F. Supp. 865 (N.D.N.Y. M 1962), aff’d per curiam, 319 F.2d 844 (2d Cir. 1963)
• Religious Freedom Restoration Act of 1993, 42 U.S.C. }} 2000bb-2000bb-4 (2000)
• Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. ss2000cc et seq

See also Accommodation of Religion; City of Boerne v. Flores, 521 U.S 507 (1997); Equal Protection Clause and Religious Freedom; Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment Clause (I): History, Background, Framing; Establishment of Religion and Free Exercise Clause; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Free Exercise Clause (I): History, Background, Framing; O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Religious Freedom Restoration Act; Religious Land Use and Institutionalized Persons Act of 2000; Turner v. Safley, 482 U.S. 78 (1987)