Part II Constitutional Law of Corrections

1. Part II Constitutional Law of Corrections

2. Chapter 9 – First Amendment – Religion • Introduction: Chapter looks at the First Amendment’s two religious clauses – establishment of religion, and the free exercise thereof

3. Chapter 9 – First Amendment – Religion: cont’d • “Test”: is it “establishment” or “free exercise” • Persons handing out religious material in airport terminal • Not serving in military because of religious reasons (conscientious objectors) • Polygamy • Putting a nativity scene on the courthouse lawn • Paying for chaplains in the military • Prayer or Bible reading in public schools

4. Chapter Outline • Establishment of Religion • Faith-based Initiatives • Cruz v. Beto • Freedom to Exercise Religion in Prisons • O’Lone v. Shabazz • Religious Freedom Restoration Act • Other Free Exercise Issues in Prisons • Unusual Religious Groups

5. Establishment of Religion • Clause forbids any action by the government to “establish” religion • Only a few issues from prison have been litigated under the establishment clause • Federal courts have upheld the use of federal money to pay prison chaplains, to build chapels, and to buy religious materials

6. Establishment of Religion: cont’d • In Everson v. Board of Education (1947), Court said establishment clause means at least this • Neither state nor federal government can set up a church • Neither can pass laws which aid one/aid all/or prefer one religion over another

7. Establishment of Religion: cont’d • Neither can force nor influence person to go or to remain away from church against his will, or force person to profess a belief or disbelief in any religion • Neither state nor federal government can take part, either openly or secretly, in affairs of any religious organizations or groups and vice versa

8. Establishment of Religion: cont’d • In Bowen v. Kendrick (1988), Supreme Court held that if both secular and religious objectives influence the government’s practice, there is no violation of the establishment clause, provided the government’s express purposes are sincere

9. Faith-based Initiatives • Executive Orders issued by President Bush providing for faith-based initiatives • Supporters believe such initiatives will help an inmate prepare for a successful community return • Such a goal is seen as secular in nature, and thus constitutionally permissible • Prison litigation arising from such initiatives is expected to focus on how this is achieved and whether the programs violate the establishment clause

10. Cruz v. Beto (1972) • Texas inmate filed a § 1983 action, claiming to be a Buddhist • He objected to other religious programs that provided Jewish and Christian bibles and religious classes and services • Inmate claimed he was not allowed to • Use the prison chapel • Correspond with a Buddhist religious advisor • Share his religious materials with other inmates

11. Cruz v. Beto: cont’d • For his attempts to hand out literature, he was placed in solitary confinement • Court ruled that inmate would have to be given the opportunity to pursue his faith comparable to the opportunity given to other inmates

12. Freedom to Exercise Religion in Prisons • Litigation brought by Black Muslim inmates in the early 1960s can be credited with opening up federal courts to inmate civil rights claims • Claims were made for group to be recognized, and to allow religious activities • Courts have been reluctant to tackle issue of what is in fact a religion

13. Freedom to Exercise Religion in Prisons: cont’d • In Fulwood v. Clemmer (1962), the district court concluded that the Black Muslim faith was indeed a religion • Tied “religion” to “a belief in the existence of a supreme being controlling the destiny of man”

14. O’Lone v. Shabazz (1987) • New Jersey regulation prohibited inmates who were working on outside work details from coming back inside the prison during the day, except for emergencies • Regulation was due to security concerns and demands on staff time

15. O’Lone v. Shabazz: cont’d • Regulation prevented Muslims on outside work details from attending Jumu’ah service, which all agreed was a religious dictate of the inmates’ sincerely held religious beliefs • Muslim inmates sued

16. O’Lone v. Shabazz: cont’d • Court of Appeals found a violation of the inmates’ free exercise rights • Would have required prison officials to show there was “no reasonable method” to accommodate inmates’ rights to observe “a central religious practice”

17. O’Lone v. Shabazz: cont’d • Supreme Court reversed, upholding prison officials and the regulation • Should afford deference to the judgment of the prison officials • Held that prison officials acted reasonably, in pursuit of a valid correctional purpose – maintaining prison security and order • This penological objective outweighed the inmate’s First Amendment claim

18. Religious Freedom Restoration Act (RFRA) • O’Lone standard was called into question following the 1993 enactment of RFRA • Act says the government may substantially burden a person’s free exercise of religion only • If it is necessary to further a compelling governmental interest and • Is the least restrictive means of achieving that interest

19. Religious Freedom Restoration Act (RFRA): cont’d • RFRA applied to prison administrators • In City of Boerne v. Flores (1997), local zoning officials in Texas denied religious leaders a building permit to enlarge a church (based on an ordinance governing historic preservation) • The church’s archbishop sued, challenging the denial of the permit under RFRA • Case ended up at the Supreme Court

20. Religious Freedom Restoration Act (RFRA): cont’d • Court held that RFRA exceeded Congressional power • “Congress does not enforce a constitutional right by changing what the right is” • “It has been given the power [in Section 5 of the Fourteenth Amendment] ‘to enforce,’ not the power to determine what constitutes a constitutional violation” • “The power to interpret the Constitution in a case or controversy remains in the Judiciary”

21. Religious Freedom Restoration Act (RFRA): cont’d • Federal government interpreted Boerne as applying only to the states • Thus RFRA is still applicable to the federal government • In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA)

22. Religious Freedom Restoration Act (RFRA): cont’d • RLUIPA keeps the compelling government interest/least restrictive means test of RFRA, but narrows the scope of application • RLUIPA focuses on • Protection of land use, when used for religious exercise; and • Protection of religious exercise by institutionalized persons

23. Religious Freedom Restoration Act (RFRA): cont’d • As to institutionalized persons, RLUIPA applies where the substantial burden on religious activity occurs • In a program or activity that receives federal financial assistance • Or would affect commerce with foreign nations, among the several states, or with Indian tribes

24. Religious Freedom Restoration Act (RFRA): cont’d • Lower courts split on constitutionality of act • In Mayweathers v. Newland (2002), Muslim inmates, in a case similar to O’Lone, alleged California prison rules penalized attendance at Friday afternoon religious services, thus violating the First Amendment • RLUIPA claim was added following its passage • Appeals court upheld RLUIPA as a constitutional exercise of Congress’ spending clause powers

25. Religious Freedom Restoration Act (RFRA): cont’d • In Cutter v. Wilkinson (2003), Ohio inmates claimed denial of rights to religious practice, due to what they saw as unwarranted security concerns, in violation of RLUIPA • Appeals court ruled for the state: RLUIPA’s legislative history “offers no evidence . . . religious rights are at any greater danger of deprivation in prison than are other fundamental rights” • As of this time, no Supreme Court decisions on RLUIPA

26. Other Free Exercise Issues in Prisons • Diet – some religious groups have strict dietary requirements • In the 1960s and 1970s, some courts required prisons to provide special religious diets • Pork-free for Muslim inmates • Kosher for Jewish inmates

27. Other Free Exercise Issues in Prisons: cont’d • Very difficult to base the provision of such special religious items as diet on the sincerity or orthodoxy of the inmate’s beliefs • Some factors that may be asked or looked at • Whether the inmate takes part in other religious observances at the prison

28. Other Free Exercise Issues in Prisons: cont’d • Whether the inmate eats food that is not consistent with his religious beliefs • Whether the inmate purchases commissary items contrary to her religious beliefs • It is not permissible to make a finding based on a determination that the inmate’s beliefs fall outside the main or customary tenets of the stated religion

29. Other Free Exercise Issues in Prisons: cont’d • The number of different religions with special dietary needs can pose a large burden on a corrections facility that tries to accommodate such demands • DeHart v. Horn (2000): inmate taught himself Buddhism, became a vegetarian , based on precept in Buddhism that bans killing of any living thing

30. Other Free Exercise Issues in Prisons: cont’d • Circuit court held court’s task was to decide if beliefs were sincerely held and religious in nature in person’s “scheme of things”; not whether the requested diet was mandated by any recognized Buddhist sect • Case remanded for an analysis under Turner standards (were restrictions reasonably related to a legitimate prison objective)

31. Other Free Exercise Issues in Prisons: cont’d • In Jackson v. Mann (1999), inmate denied a kosher diet due to prison chaplain determination that inmate failed to meet requirement to be a Jew (born Jewish or completing formal conversion process) • Court of appeals: focus must be on whether the inmate’s belief is religious and sincerely held, not whether it follows ecclesiastical law

32. Other Free Exercise Issues in Prisons: cont’d • In Beerheide v. Suthers (2002), district court held corrections department must not only provide inmates a kosher diet, but must do so without requiring a contribution from the inmates • Court also found no acceptable alternative for inmates to exercise right to a kosher diet

33. Other Free Exercise Issues in Prisons: cont’d • In Udey v. Kastner (1986), federal inmate asked to be given religious diet consistent with his religious beliefs, which were not of any widely known religious group, but were based on his interpretation of certain Biblical texts • Appeals court held providing such special diets (here, organically grown produce, washed in distilled water) would lead to proliferation of such claims for special foods, and would pose “undue costs and administrative burdens” to the government

34. Other Free Exercise Issues in Prisons: cont’d • As shown, the number of different religions with special dietary needs can pose large burden to correctional agency that tries to meet the various demands – for example: • Demands on staff for supervising preparing and serving of special foods and added costs of providing special diets • Verifying dietary requirements, and ensuring outside food supplies, as well as special and separated food preparation, meet religious requirements

35. Other Free Exercise Issues in Prisons: cont’d • Grooming • Some inmates have claimed long hair required by their religion, generating a free exercise claim • Reasons for requiring male inmates to cut their hair and to be clean shaven • Desire for a standard, military-like appearance • Sanitation • Security concern – beards, mustaches, long hair changed person’s appearance, made identification more difficult

36. Other Free Exercise Issues in Prisons: cont’d • Grooming cases have gone both ways • In Moskowitz v. Wilkinson (1977), district court held that the no-beard rule was an impermissible infringement on the inmate’s sincerely held religious beliefs • The court found the security argument of prison officials were weakened by a survey showing that about half the states operated without a no-beard rule

37. Other Free Exercise Issues in Prisons: cont’d • In Pollock v. Marshall (1988), inmate claimed his religious beliefs in teachings of Lakota American Indians taught him hair was sacred and should not be cut • Using Turner analysis, court found for officials, finding there were legitimate penological interests, such as quick identification, removal of place to hide contraband, prevention of sanitation problems and homosexuality • As with religious diet cases, U.S. Supreme Court has not ruled on inmate complaints in this area

38. Other Free Exercise Issues in Prisons: cont’d • Unusual Religious Groups • State and federal courts have been reluctant to become involved in the question of whether religious beliefs are held by adherents of a “true religion” • More often, courts will assume for purpose of deciding a case, that beliefs are religious

39. Other Free Exercise Issues in Prisons: cont’d • Courts will then decide claims for religious protections and activities based on whether the exercise of those teachings within a prison setting • Would pose a threat to prison order or security, or • Would pose a significant burden on prison administration

40. Other Free Exercise Issues in Prisons: cont’d • An example is a court of appeals case, McCorkle v. Johnson (1989) • Inmate filed a § 1983 suit claiming prison authorities violated his constitutional rights by restricting his exercise of his Satanic religion • State first argued Satanism was not a religion, and that the inmate was not a sincere believer • Court refused to get involved in those issues

41. Other Free Exercise Issues in Prisons: cont’d • The court said even if Satanism is a religion and inmate a sincere believer, State policy was valid because it was reasonably related to a legitimate penological interest • Inmate had testified he wanted to • Practice sacrifices • Draw human blood for initiation, and • Eat human flesh