Written for the 2015 Pro Bono Scholars Seminar at SUNY Buffalo Law School
FAITH, FEAR, AND FREEDOM: THE UNIQUE CHALLENGE OF NONMAINSTREAM
RELIGION IN PRISONS
Molly M. Deacon
May 18, 2015
INTRODUCTION
Protecting the free exercise of religion in prisons can be a perilous balancing exercise,
weighing the spiritual needs and preferences of incarcerated persons against prison
administrators’ need to ensure safety. Matters are further complicated when inmates belong to
little-known or “nonmainstream”1 religions. These uncommon beliefs, while genuinely held,
may be unique to only a miniscule number of prisoners and are liable to be misunderstood by
administrators. In the case of some of these tiny religious movements, they may even be
associated – explicitly or in loose affiliation – with violent and racist organizations or agendas.
In this paper, I will look to legal and social means of addressing the concerns of prison
officials and incarcerated individuals with regard to freedom of religion with respect to the
question of “nonmainstream” religions. After providing background information, I will examine
the Religious Land Use and Institutionalized Persons Act (RLUIPA), the statute setting forth the
rules that apply in religious freedom cases in prisons, and Cutter v. Wilkinson, which defines the
constitutional boundaries within which the Act exists. I will then address the “compelling
1 The terminology “nonmainstream religions” comes from Cutter v. Wilkinson, the much-noted case
which upheld the Religious Land Use and Institutionalized Persons Act (RLUIPA). In that case, these
religions included Asatru, Wicca, Satanism, and the Church of Jesus Christ – Christian.
governmental interests” that may be raised as justification for curtailing religious freedom and
suggest means of addressing those challenges while maximizing the benefit incarcerated persons
receive from pursuing religious activities. Finally, I will suggest action by lawmakers and
community members that should result in a better balance between the benefit of religious
exercise and the importance of ensuring safety and making good use of limited resources in
prisons. Specifically, I recommend (1) the involvement of religious communities as a means of
educating administrators; (2) opportunities for volunteers who can assist with the facilitation of
religious services; (3) easing the administrative obstacles preventing prisoners from making
constitutional claims; and (4) a re-examination of federal, state, and facility policies or
guidelines around religious gatherings, literature, and personal items.
FAITH AND THE TRAUMA OF INCARCERATION
Confinement in a correctional facility is a traumatic experience, one that leaves deep
psychological wounds. As Mika’il DeVeaux expresses it in the article, “The Trauma of the
Incarceration Experience,” for the Harvard Civil Rights-Civil Liberties Law Review, “The
experience of being locked in a cage has a psychological effect upon everyone made to endure it.
No one leaves unscarred.”2 The incidence of violence in prison compounds the trauma of
imprisonment itself, which can result in poor psychological outcomes even for those
incarcerated for a short time.3 Adaptation to life in prison is painful, and this pain does not
vanish immediately following release.4 Particularly where the goal of incarceration is to inflict
punishment rather than to rehabilitate, support for protections that address rights beyond what
is necessary to sustain life are unpopular. Even more unpopular in public opinion is support that
comes in the midst of concrete concerns such as overcrowding and shortages of personnel and
Mika’il DeVeaux, The Trauma of the Incarceration Experience, 48 HARV. C.R.-C.L L. REV. 257 (2013).
Id at 2-3.
4 Craig Haney, The Psychological Impact of Incarceration, in PRISONERS ONCE REMOVED: THE IMPACT OF
INCARCERATION ON CHILDREN, FAMILIES, AND COMMUNITIES 33 (Jeremy Travis & Michelle Waul ed., 2003).
2
3
resources; indeed, anything “extra” may be considered superfluous in light of those constraints.
One poll even shows that only a minority of Americans believe that people currently
incarcerated should be able to participate in the political process by voting.5 Why, then, would
the same Americans wish to advance inmates’ religious liberty?
Far from being an “extra,” spiritual life is a component of one’s identity and, in times of
adversity, an important factor in coping.6 Studies have shown that the way a person copes with
trauma depends in part on that person’s religious beliefs, and that participating in spiritual life
correlates with a “sense of coherence,” meaning that individuals are able to make sense of their
existence and the traumas they have undergone.7 There is a distinction between positive
religious coping – in which the belief system is used by the believer as a source of hope and
meaning - and negative religious coping, with negative coping of this sort being correlated,
predictably, to negative outcomes.8 Negative coping is characterized by a sense of abandonment
by a higher power, or placing blame for a traumatic incident on a negative force (for instance,
the devil).9 Whether one or the other is used can depend on the involvement of skilled and
knowledgeable clergy in spiritual activities, who can mediate group activities or interactions,
“reduc[ing] undue demands on and criticism of vulnerable church members.”10 Providing for
religious needs may not always be a perfect means of coping, nor is it the only way of coping.
However, clergy or volunteers can be trained to foster positive coping and a meaningful sense of
belonging, and enforcement of the right of inmates to exercise religious freedom in a meaningful
way can contribute to positive outcomes for individuals and the communities into which they
are released after incarceration.
5 Christopher Uggen, What Americans Believe About Voting Rights for Criminals, SCHOLARS STRATEGY
NETWORK (Apr. 2013), http://www.scholarsstrategynetwork.org/content/what-americans-believe-aboutvoting-rights-criminals.
6 Julio F. P. Peres et al, Spirituality and Resilience in Trauma Victims, 46 J. RELIGION & HEALTH 343
(2007).
7 Id. 8 Id.
9 Id.
10 Jennifer Nooney & Eric Woodrum, Religious Coping and Church-Based Social Support as Predictors of
Mental Health Outcomes: Testing a Conceptual Model, 41 J. SCIENTIFIC STUDY RELIGION 359 (2002). UNIQUE BELIEFS, UNIQUE CHALLENGES
The aphorism “there are no atheists in foxholes” seems to ring especially true under the
adverse circumstances of daily life in prison. 1.6% of Americans described themselves as atheists
in 2007.11 However, in that same year, a survey of six facilities conducted by the U.S.
Commission on Civil Rights showed that in each facility, only between 0.0% and 0.2% of
inmates identified themselves as atheist or agnostic.12 In every facility that responded to the
interrogatories furnished by the Commission, inmates practicing paganism, Buddhism, or
Native American religions were each more common than inmates practicing no religion (while
this has not been the case outside of correctional facilities).13 In two facilities – one located in
Maine and the other located in New Mexico – there were a greater number of pagan inmates
than Muslim inmates.14 Christianity is by far the most commonly-held belief system for inmates,
according to this small survey and others, and it is also the belief system for which there is the
most support, according to one survey of prison chaplains.15 In that survey, though, 83% of
respondents answered that there were too many volunteers serving Christian inmates, despite
high demand.16 Other religions, it was noted, were underserved.17
A shortage of personnel is only one obstacle to religious freedom for those with
“nonmainstream” beliefs. Legitimate concerns, particularly those relating to safety, can make
religious accommodation tricky, but it can be challenging to judge when those concerns are well It is also worth noting that 3.1% of Americans described themselves as atheists in 2014, a marked
increase. America’s Changing Religious Landscape, PEW RESEARCH CENTER (May 12, 2015)
http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/ (hereinafter “Religious
Landscape, Pew Center”).
12 U.S. COMM’N ON CIVIL RIGHTS, ENFORCING RELIGIOUS FREEDOM IN PRISON 15 (September 2008).
13 Id; Religious Landscape, Pew Center.
14 Id.
15 Id; Religion in Prisons – A 50-State Survey of Prison Chaplains, PEW RESEARCH CENTER (March 22,
2012) http://www.pewforum.org/2012/03/22/prison-chaplains-exec/ (hereinafter “Religion in Prisons,
Pew Center”).
16 Religion in Prisons, Pew Center.
17 Id.
11
founded.18 On the opposite side of the same coin, there are some instances in which it can be
difficult to determine whether a religious belief is genuinely held, whether a group is inherently
extremist, or even whether faith is being used as a front for dangerous and illicit activity.19
Where religious freedom has been stripped away without sufficient justification, administrative
requirements, particularly the additional requirements imposed under the Prison Litigation
Reform Act (PLRA), can prevent a constitutional claim from ever being meaningfully heard.20
Whether the obstacles are structural or directly legal in nature, they may deprive individuals
residing in prisons the right to participate in something that may ultimately be both highly
beneficial to them and beneficial as a component of rehabilitation.21 There have been legislative
measures to ensure that the religious liberties of all incarcerated persons are protected, but
these statutes have been weakened by the courts in certain key decisions.
THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT
The Religious Land Use and Institutionalized Persons Act (RLUIPA) sets the present
standard for evaluating inmates’ religious accommodation claims.22 RLUIPA’s history begins
with the end of another standard, the Religious Freedom Restoration Act (RFRA). The RFRA,
enacted in 1993, allowed restrictions on religious freedom in prisons only with the justification
See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (Work requirement conflicted with Muslim
inmates’ Friday religious observances. The state argued that the facility’s policies were designed to
alleviate a problem with overcrowding in the interest of keeping order. The court accepted this argument,
opining that attendance at other religious observances were sufficient “alternative means” of exercising
religious freedom.)
19 See, e.g., The Creativity Movement, SOUTHERN POVERTY LAW CENTER, http://www.splcenter.org/getinformed/intelligence-files/groups/the-creativity-movement-0 (last visited May 17, 2015); Casey Sanchez,
Supreme Court Requires Prisons Give Special Consideration to Racist Pagans, SOUTHERN POVERTY LAW
CENTER (2009), http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2009/fall/prisoners-of-belief.
20 42 U.S.C. § 1997e.
21 Todd R. Clear, et al, Does Involvement in Religion Help Prisoners Adjust to Prison? NCCD FOCUS (Nov.
1992) (available at http://www.nccdglobal.org/sites/default/files/publication_pdf/religion-andprisoners.pdf).
22 Know Your Rights: Freedom of Religion, ACLU NATIONAL PRISON PROJECT (July 2005) (available at
https://www.aclu.org/files/images/asset_upload_file78_25744.pdf) (hereinafter “Know Your Rights,
ACLU”).
18
of a “compelling governmental interest” and required that the restrictions be the “least
restrictive means” of advancing the stated interest.23 The statute was ruled unconstitutional in
City of Boerne v. Flores on the grounds that the RFRA created new constitutional rights rather
than merely enforcing existing rights.24 The ruling effectively gutted RFRA with respect to state
governments. This meant that between the 1997 City of Boerne ruling and 2000, there was a
significantly lower standard for evaluating restrictions on inmates’ religious freedom claims in
most states. That standard was the “legitimate penological objectives” test, established in
Turner v. Safley.25
In 2000, in response to the decision in City of Boerne, Congress passed RLUIPA, which
again restricts states’ latitude to regulate religious freedom in prisons. RLUIPA re-establishes
the “least restrictive means” test, originally RFRA’s, and states that “no government shall
impose a substantial burden on the religious exercise of a person residing in or confined to an
institution.”26 Such a substantial burden is held to strict scrutiny upon challenge, though
deference to prison administrators has been afforded, and the power of the statute is limited by
the Establishment Clause of the First Amendment.27 In Cutter v. Wilkinson, the Supreme Court
explained that RLUIPA could only be used to alleviate a “government-created burden” and not
to advance religion or give preference to religious inmates (as opposed to non-religious
inmates).28
In Cutter, the plaintiffs were members of “nonmainstream” religious groups, including
Satanism, Asatru, Wicca, and the Church of Jesus Christ – Christian.29 The treatment of those
inmates’ claims in that case is of interest not just for the precarious upholding of RLUIPA’s
constitutionality, but because those belonging to nonmainstream religions were said not to be
42 U.S.C. § 2000bb.
City of Boerne v. Flores, 521 U.S. 507 (1997).
25 Turner v. Safley, 482 U.S. 78 (1987).
26 42 U.S.C. § 2000cc.
27 Cutter v. Wilkinson, 544 U.S. 709 (2005).
28 Id. 29 Id.
23
24
entitled to accommodation such that their ability to exercise their faith would be equal to that of
someone belonging to a mainstream religion. That is, a prison is not required to provide
chaplains or other trained personnel who are able to accommodate nonmainstream religious
inmates’ religious needs, even if this means that they are barred from holding religious
gatherings, for instance, due to lack of supervision, a restriction that would be justified as
advancing the compelling governmental interest of maintaining order in the facility.30
The trouble with the “maintaining order” justification in Cutter as a compelling interest
sufficient to overcome strict scrutiny is that any number of restrictions could be argued to be in
the interest of order. For example, prison officials could argue that they cannot provide
accommodations to inmates belonging to nonmainstream religions because this would give rise
to a perception among other inmates that the small religious group is receiving preferential
treatment. As Derek L. Gaubatz points out in his article on the subject, the use of this (likely
permissible) justification could give rise to a “heckler’s veto”; that is, if the majority of inmates
dislike a minority religious group, then that group will be unable to exercise their faith
publically, because their public exercise could lead to unrest.31 Justifications on these grounds
tend to disadvantage nonmainstream religious groups; if the number of “hecklers” belonging to
other religious groups reaches critical mass, threatening the safety of all inmates and personnel
within a facility, then prison officials may be forced to deny a gathering, service, or study group
that has been requested. Neither the good behavior nor the negative reactions of small groups
are rewarded with what is promised in the Constitution as a fundamental right, because the
number of “hecklers” is insufficient; it is easier to dismiss a small group’s legitimate complaints
than to ignore threats from a large group. Moreover, individual complaints are easily dismissed,
particularly if officials or courts determine that the religion in question does not come in the
Id.
Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s
Prisoner Provisions, 28 HARVARD J. L. & PUB. POL’Y 501 (2005).
30
31
form of a sufficiently coherent group.32 Those belonging to nonmainstream religions must not
only prove that there has been a substantial burden on their free exercise of religion, but also
that their religion is a religion after all.33
RECOMMENDATIONS FOR BALANCING RELIGIOUS FREEDOM AND GOVERNMENTAL
INTERESTS
Governmental interests such as maintaining safety and order cannot be dismissed as
wholly pretextual. Certainly, in prisons, there are unique challenges that must be taken into
account. Particularly worrisome to prison officials are issues such as gang affiliation and
violence among unsupervised inmates convening in groups. These concerns are exacerbated
when prison officials lack sufficient knowledge of nonmainstream religious practices to make
determinations as to whether beliefs are genuine.
Issues of “genuineness” can arise where a religious group has a reputation for, or an
outright association with, extremist political beliefs. 34 A more prevalent problem in prisons than
outside is the occurrence of racial supremacist or separatist gangs.35 To provide the most
prominent example, the affiliation between a nonmainstream religion and a movement such as
(to give the most prominent example) white nationalism may be evident. This is the case with
Creativity, a belief system based in racist doctrine. In other instances, the religion itself is not
the problem, but instead the way it is being used either to justify objectionable activity or cover
for non-religious gatherings with illicit purposes. While those belonging to these
32 See, e.g., David L. Hudson, Jr., 10th Circuit Rejects Inmate’s Lawsuit Over Special Diet, FIRST
AMENDMENT CENTER (Jan. 16, 2013), http://www.firstamendmentcenter.org/10th-circuit-rejects-inmateslawsuit-over-special-diet.
33 Know Your Rights, ACLU
34 See Religion in Prisons, Pew Center.
35 See, e.g., Certified and Monitored STGs, ARIZONA DEPARTMENT OF CORRECTIONS,
https://corrections.az.gov/public-resources/inspector-general/security-threat-group-unit/certified-andmonitored-stgs (last visited May 18, 2015). Note that most of the listed Security Threat Groups are gangs
organized along racial lines.
nonmainstream religions may understand the politics within their own groups, the range of
political beliefs in a group can be missed by “outsiders,” including prison chaplains who
themselves do not belong to these groups.
Training for prison chaplains, or at least providing information where necessary, could
allow them to identify where problems exist or what the regular practices of a particular religion
look like. This effort may involve the participation of religious groups that coordinate volunteers
to deliver outreach to inmates, particularly those with the stated goal of combating religious
extremism. One example of a religious entity coordinating such a program is The Troth, a
Heathen (or Asatru) organization that rejects the racist extremism that has been reported
among inmates adhering to certain iterations of the religion.36 The Troth coordinates an “inreach” program designed to ensure that the materials and concepts entering facilities are not
“tinged with racism and white supremacy” and “protect the folk from this destructive
radicalization.”37 The program also serves the purpose of conducting outreach to chaplains and
administrators.38 This educational function is important not only because it is an opportunity to
explain the practices of the inmates The Troth serves, but because it is an opportunity for
chaplains and administrators to ask questions and receive answers as to which inmate requests
and behaviors are outside even the most distant parameters of the diverse beliefs that comprise
Asatru.
The benefit, then, is twofold, and in line with the first two measures I suggest on the part
of religious communities: (1) Educating administrators and personnel and (2) providing direct
assistance in the facilitation of religious services for inmates. The major challenges, of course,
are participation and variation. Nonmainstream religions, being nonmainstream, may be
characterized by vast diversity of belief while being tiny in terms of membership. This is
Mission Statement, THE TROTH (2013),
http://thetroth.org/index.php?page=mission&title=About%20Us%20|%20The%20Troth&css=style2&pa
gestyle=mid; See MATTIAS GARDELL, GODS OF THE BLOOD 206, 217-220 (2003).
37 In-Reach Program, THE TROTH (2013), http://thetroth.blogspot.com/p/in-reach-program.html.
38 Id.
36
particularly true of earth-based religions, including Asatru, Wicca, and various forms of
Neopaganism. Often, there simply is not enough person-power to make volunteer prison
outreach programs successful.
The burden of easing restrictions on religious liberty need not, and cannot, rest on
religious communities alone, however. Nonmainstream religions and the community members
representing them tend not to have the organization, numbers, or uniformity to meaningfully
push legislative or policy reform forward. The PLRA imposes additional obstacles that an inmate
must surmount before accessing the courts and then imposes restrictions on the relief that a
court may grant.39 This makes it particularly difficult for prisoners without outside support to
advance legitimate, constitutional claims, and limits the relief to which they are entitled to a
severe degree. The PLRA exists, ostensibly, is a means of stopping a supposed “deluge” of
frivolous lawsuits from prisoners, but non-frivolous lawsuits are also stopped.40 Inmate
complaints regarding religious freedom frequently relate to perceptions (or realities) of unequal
treatment, denials of requests to observe holy days or similar, and denials of requests for items
required for observances, worship, or ritual. Reforms of regulations and policies on the federal,
state, and facility levels may denecessitate the very lawsuits that are so difficult to bring under
the PLRA. Administrators should reevaluate just how unsafe it is, for instance, to allow a small
number of inmates to be exempt from a day of work for a religious observance. The PRLA itself
should be subjected to an even closer reconsideration. The statute goes beyond merely
discouraging frivolous lawsuits; instead, it prevents incarcerated persons from asserting their
legal rights under protective federal statutes or the Constitution.
CONCLUSION
39 See Proposed Revisions to the Prison Litigation Reform Act, HUMAN RIGHTS WATCH (Nov. 8, 2007),
available at http://www.hrw.org/news/2007/11/07/proposed-revisions-prison-litigation-reform-acthearing-house-judiciary-subcommittee.
40 Id.
RLUIPA guarantees some protection to incarcerated individuals, but what is necessary to
overcome the high level of scrutiny RLUIPA purports to set is, in fact, very little. This
particularly disadvantages inmates belonging to nonmainstream religions due to their small
populations and misunderstanding among prison officials regarding the practices and beliefs are
a part of those religions, among other reasons. Progress need not come exclusively from inside
prisons or from legislature; religious communities have some tools at their disposal that they
can employ for their incarcerated adherents. Religious communities can work to educate prison
chaplains on the beliefs of their incarcerated adherents and provide support in the form of
organized volunteer programs that meet the needs of prison officials, and legislative advocacy
may be an important tool for eliminating obstacles to free religious exercise for inmates
belonging to nonmainstream religions. Balancing the interests of religious inmates and prison
officials can certainly be challenging, but it is a worthwhile endeavor despite a lack of political
will among the non-incarcerated population.