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By David L. Hudson Jr.
First Amendment scholar

Whether it be religious diet, grooming, worship services, religious jewelry or even access to a chaplain before execution, inmates frequently challenge prison officials over what they allege are violations of their freedom of religion.

Two Muslim inmates sued California prison officials, saying they were forced to eat food forbidden by their religion. Christian inmates sued, claiming that Mississippi prison officials violated their First Amendment rights by refusing to allow inmate-led services and by prohibiting inmates from preaching. A Jewish inmate in Ohio sued prison officials after they cut his beard, which he says was necessary for his faith. Kentucky prison officials recently prohibited inmates from attending satanic services.

The Safley-O'Lone reasonableness standard
Often, inmates will sue under the First Amendment free-exercise clause. This clause generally prohibits the government from infringing on individuals’ rights to practice their religion freely. But prisoners do not have the same level of rights as normal citizens. Incarceration drastically changes the constitutional equation.

Prison officials are normally granted a good deal of discretion, particularly when they can show that their policies are necessary to further a legitimate safety concern. When a prison regulation clashes with an inmate’s religious freedom, the courts must strike a balance between the two.

The U.S. Supreme Court established the current standard for inmate First Amendment cases under a pair of 1987 decisions, Turner v. Safley and O’Lone v. Estate of Shabazz. In Safley, the Court examined restrictions on inmate correspondence and inmates’ right to marry. The Court established the following standard: “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”

The Court identified several factors relevant to determining the reasonableness of the prison officials’ actions:

  1. Whether there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it. The Court noted that the “governmental objective must be a legitimate and neutral one.” It added: “Prison regulations restricting inmates’ First Amendment rights [must be] operated in a neutral fashion, without regard to the content of the expression.”
  2. Whether there are alternative means of exercising the right that remain open to prison inmates.
  3. Whether accommodating prisoners’ constitutional rights will infringe on the rights of guards or other inmates and on the allocation of prison resources generally.
  4. Whether there are alternative methods of accommodating prisoners’ rights at minimal cost to valid penological interests. The existence of easy alternatives can show that the regulation was an “exaggerated response” to prison concerns.

The Safley standard has been used in most lower courts examining prisoner First Amendment claims. One week after the U.S. Supreme Court decided Safley, the high court applied the Safley standard to a free-exercise of religion claim in O’Lone v. Estate of Shabazz.

In O’Lone, a group of Muslim inmates challenged New Jersey state prison policies that prohibited them from attending Jum’ah, a weekly Muslim religious ceremony. Prison officials determined that allowing inmates to leave outside work details to go inside the prison for the religious service would imperil safety and institutional order. They testified that inmates returning from outside work details created too much congestion and delays at the main gate, which is a high-risk area.

Applying the Safley standard, the high court majority ruled that “while we in no way minimize the central importance of Jum’ah to respondents, we are unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”

The Supreme Court noted that the inmates could still “participate in other Muslim religious ceremonies.” The Court wrote: “We think this ability on the part of respondents to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable.”

Some prison-rights advocates say the Safley-O’Lone standard excessively favors prison concerns. “It simply gives too much deference to prison officials,” says Keith Defasio, director of Advocare, a Virginia-based group that works for prisoners' rights. “There is a lot of abuse of inmates’ freedom-of-religion rights.”

David Fahti, staff counsel for the American Civil Liberties Union National Prison Project, agrees that the Safley-O'Lone standard is too deferential. “Oftentimes, in the lower courts prison officials do not provide any evidence that their regulation serves a legitimate prison interest but simply come up with a post-hoc, speculative reason to justify the restrictive policy," he said. "Prison officials often dream up plausible — and sometimes not very plausible — reasons for their actions.”

But the American Correctional Association contends that the Safley-O’Lone standard is the proper one. Its Web site reads: “The legal standard for establishing the validity of institutional rules on religious faith and practice should be the reasonableness standard provided in Turner v. Safley and O’Lone v. Shabazz.”

Marci Hamilton, a law professor who is challenging the constitutionality of the Religious Land Use and Institutionalized Persons Act, says that the Safley-O’Lone standard is sufficient to protect inmates’ First Amendment rights.

“It is very hard for prison officials to keep order in prisons,” says Hamilton, a professor at Yeshiva University's Benjamin N. Cardozo School of Law. “Inmates frequently rely upon religious defenses to any type of prison regulation.”

Statutes that provide even greater protection
Congress has passed two statutes that increase the protection of inmates’ First Amendment rights. These are the Religious Freedom Restoration Act of 1993 — RFRA — and the Religious Land Use and Institutionalized Persons Act of 2000 — RLUIPA.

Both statutes provide that government officials cannot impose a substantial burden on inmates’ religious rights unless they show their regulation serves a compelling government interest in the least-restrictive way. The U.S. Supreme Court struck down RFRA as it applied to the states in its 1997 decision City of Boerne v. Flores. The Court determined that Congress did not have the authority to pass RFRA based on its enforcement powers under the 14th Amendment. According to the Court, Congress overstepped its authority in imposing such a law upon the states.

Many states, meanwhile, also passed their own RFRA laws, and those remain in effect. And while the Court said RFRA could not be applied to the states, the law passed by Congress still applies to the federal government, including federal prisons.

The Supreme Court's limiting of RFRA led Congress to pass another federal law, called RLUIPA. Unlike RFRA, Congress justified RLUIPA on both the spending and commerce clauses of the Constitution.

Many prison-rights and religious-freedom advocates applaud these laws. For example, Charles Haynes, senior scholar at the First Amendment Center, writes of RLUIPA: “It reaffirms and strengthens our national commitment to do all that we can to protect the right of every citizen to 'follow the dictates of conscience' in matters of faith.”

Fahti says that these laws are good because they make sure that “prison officials give some thought before passing rules and policies that burden inmates’ freedom of religion rights.”

Still, some believe that Congress went too far in passing both RFRA and RLUIPA. Professor Hamilton argues that the Safley-O'Lone standard was sufficient. She also believes that Congress exceeded its authority in passing RLUIPA as well as RFRA. She questions the viability of the legislation under the commerce clause. “The key problem is that the federal government is not regulating something that is part of the economy,” she says. “The Supreme Court has said that government regulation in and of itself is not economic for purposes of the Commerce Clause.”

Others, like Fahti, believe that RLUIPA is constitutional. “It is much less vulnerable to challenge than RFRA,” he says.

Several appellate courts have considered the constitutionality of RLUIPA. Most of these courts have upheld the statute. For example, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in Mayweathers v. Newland in 2002 that “RLIUPA merely accommodates and protects the free exercise of religion, which the Constitution allows.”

Similarly, three-judge panels in the 4th and 7th Circuits have joined the 9th Circuit in upholding the constitutionality of RLUIPA. In Madison v. Ritter, the 4th Circuit ruled that “RLUIPA has the effect of lifting burdens on prisoners’ religious exercise, but does not impermissibly advance religion.”

In Charles v. Verhagen, the 7th Circuit upheld RFRA from constitutional challenges based on the establishment clause and the 10th Amendment. The court also ruled that RLUIPA was a valid exercise of Congress’ powers under the spending clause of the Constitution.

However, a three-judge panel of the the 6th Circuit ruled in Cutter v. Wilkinson that RLUIPA violated the establishment clause because it had “the primary effect of advancing religion.”

“One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statute’s benefits,” the panel added.

The split in the federal appeals courts led the U.S. Supreme Court to take the Cutter case and address RLUIPA. In Cutter v. Wilkinson (2005), the Supreme Court ruled that the part of RLUIPA dealing with inmates “qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.”

Currently federal prisoners can sue under RFRA and RLUIPA, while state inmates can sue under RLUIPA and state RFRA laws.

An effect of this development is that prison officials have to be more sensitive to inmate religious requests, or accommodate more requests than they would under the general Safley-O'Lone standard.

Another complaint lodged against RLUIPA is that it will lead to more and more spurious claims filed by inmates seeking favors based on religious beliefs. However, both RFRA and RLUIPA require, as a threshold matter, that the inmate’s request for accommodation be based on legitimate religious belief. Legal commentator Heather Davis explains that “this threshold inquiry is necessary to dispose of bogus claims undeserving of First Amendment protections.”

For example, some inmates who espouse white supremacy have claimed that, for religious reasons, they can share a cell only with a member of their own race. A federal appeals court rejected the claims of an Iowa inmate who claimed that his religious beliefs prohibited him from sharing a cell with an African-American inmate. The inmate sued under the First Amendment free-exercise clause and RFRA. The court rejected both claims in Ochs v. Thalacker, writing that prison officials had a compelling interest in not segregating inmates on a racial basis because they believe that random cell assignments are the best way to reduce gang activity and lessen racial tensions.

Should society care about inmates’ religious rights?
Whatever legal standard is used to resolve inmate freedom-of-religion lawsuits, some in society ask: “Who cares?” Many people believe that inmates forfeited their rights when they committed their crimes.

But others believe society should try to encourage inmates to practice their religious faith. “Let’s face it. Most inmates do get out of prison at some point,” Fahti says. “And the single best predictor of whether an inmate will do OK when they reenter society is whether they maintain community ties when they are in prison.

“There are many reasons why we should recognize the religious rights of inmates,” Fahti says. “Our country was founded on principles of religious freedom. Many people came to this country to flee religious persecution in other countries. As long as a prisoner’s practice of religion does not interfere with prison security, there is simply no reason to deny an inmate’s religious rights.”

Added Advocare's Defasio, “Even though inmates are incarcerated for crimes, they should still be entitled to their constitutional dignities. Where are we as a democracy if we can give and take away constitutional rights?”

Updated October 2008


Native Americans challenge prison's smoking ban

Inmates contend Maine officials denied them the right to build sweat lodge, seized religious items and temporarily confiscated ceremonial bowl. 05.16.03

No specially prepared meat for Islamic inmates, 3rd Circuit says
Three-judge panel finds that providing vegetarian meals instead is a reasonable accommodation of prisoners' religious beliefs. 09.12.03

6th Circuit strikes down religious-freedom law for prisoners
Law professor says Supreme Court may end up resolving split in appellate courts over constitutionality of RLUIPA. 11.10.03

Native American inmate challenges grooming policy
ACLU of Southern California files federal lawsuit on behalf of Billy Soza Warsoldier, who claims his religious beliefs would be violated if he cut his hair. 04.03.04

9th Circuit: Inmates can get mail printed from Internet
California officials fail to persuade judges that mail containing Web material might contain coded messages, which could pose safety issue. 04.21.04

Oklahoma inmates push prisons for kosher meals
Attorneys for state argue that serving Jewish fare would cost millions, might violate establishment clause, could cause riots. 07.13.04

9th Circuit sides with Indian prisoner vs. long-hair ban
California prisons' hair policy forced inmate 'to choose between following his religious beliefs and suffering continual punishment,' court holds. 08.02.05

Justices hear case involving prisoners' reading material
Alito sits out Beard v. Banks because he took part in 3rd Circuit case concerning denial of publications to help control unruly inmates. 03.27.06

State hasn't justified denying feast-day meats for Muslim inmate
Massachusetts high court says state constitution goes further than U.S. Constitution to protect religious freedom of prisoners. 04.11.06

N.D. high court: Prison can take away inmate's magazines
State justices find penitentiary rules on exchanging publications, displaying symbols are reasonable. 04.20.06

Convicted killer can't preach in R.I. prison
Calling decision 'somewhat of a close call,' federal judge says that compelling state interest in safety trumps inmates' religious-freedom rights. 06.08.06

High court limits inmate lawsuits in Calif. case
Prisoner claimed wrongful punishment interfered with his free practice of religion; Court says he missed grievance deadline. 06.23.06

Prisons can restrict inmates' reading matter
Justices vote 6-2 in Beard v. Banks that state policy doesn't violate free speech of troublesome inmates.

  • Quick look at ruling 06.28.06

    Muslim inmate ordered to handle pork can sue staff
    3rd Circuit: Defendants had 'fair warning' from other courts that they should 'respect, and accommodate when practicable' prisoner's religious concerns. 07.26.06

    Supermax inmate defeats prison rules on reading material
    Mark Jordan brought suit after officials refused to deliver printout of 'Justice Denied' essays; court agrees restriction is too broad. 10.31.06

    4th Circuit upholds RLUIPA in siding with Va. inmate
    State had challenged federal law after Ira Madison complained in 2001 lawsuit that prison officials were violating the act by denying kosher meals. 01.02.07

    1st Circuit: R.I. inmate can sue over preaching ban
    Unanimous three-judge panel rejects correction officials' argument that man's sermons presented security threat. 04.09.07

    N.H. prison ordered to restore inmate's kosher diet
    Federal magistrate sides with Orthodox Jewish prisoner, who argued officials violated First Amendment by revoking religious diet after catching him with non-kosher food. 05.06.07

    Va. inmate can challenge denial of Thor's Hammer
    By David L. Hudson Jr. Federal magistrate says Virginia prison officials may have violated Forest Fisher's rights under First Amendment, religious-freedom law. 06.05.07

    R.I. inmate wins right to resume jailhouse preaching
    Settling three-year legal battle, correction officials adopt policy allowing Wesley Spratt to preach at religious services under chaplain's supervision. 08.02.07

    Vt. prisons to pay $25,000 to settle suit by Jewish inmate
    Former prisoner said he was blocked from receiving kosher food from charitable group, restricted in his use of a menorah for Hanukkah. 04.04.08

    9th Circuit revives inmate's RLUIPA suit
    By Josh Tatum Unanimous three-judge panel reinstates Darin Greene's claim that California prison violated his rights by barring group worship by maximum-security prisoners. 04.16.08

    8th Circuit backs Ark. inmate's religious-freedom claim
    Court finds judge erred in dismissing discrimination complaint by prisoner punished for refusing to work on Sabbath. 10.03.08

    N.J. inmate challenges ban on prison preaching
    'The right to practice one's faith, or no faith at all, is fundamental and applies inside and outside the prison gates,' says ACLU official. 12.07.08

    9th Circuit revives Nev. inmate's lawsuit over kosher diet
    Jewish convert says prison officials violated his rights by refusing to serve kosher meals on grounds he couldn't show 'hereditary connection' to or 'substantial philosophical understanding' of religion. 12.11.08

    Prisoner's religious objection won't stop DNA sampling
    D.C. Circuit: 'Government's extraction, analysis and storage of (Russell) Kaemmerling's DNA information does not call for Kaemmerling to modify his religious behavior in any way.' 12.31.08

    Calif. inmate can pursue retaliation claim
    By David L. Hudson Jr. Federal judge says prisoner's free speech can be chilled by withholding of food. 02.17.09

    4th Circuit sides with prison officials in dispute over 'insolent' letter
    By David L. Hudson Jr. Panel notes that inmates receive reduced level of speech protection, deference to prison officials is paramount consideration. 03.11.09

    R.I. prisoner accuses guards of punishing him for speaking out
    Lawsuit filed by ACLU claims officials retaliated against Jason Cook for complaining publicly about prison reading-materials policy. 04.10.09

    Prisoners' side struggles in reading-material case
    By Tony Mauro Pennsylvania disciplinary policy that includes withholding publications from unruly inmates seems undamaged in arguments before Supreme Court justices. 03.28.06

    Religious liberty behind bars: How free should prisoners be?
    By Charles C. Haynes Prisons can’t impose substantial burdens on free-exercise rights of prisoners unless the regulation serves a compelling state interest, such as prison safety. 07.25.04

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