Part II
Constitutional Law of Corrections
Chapter 9 – First Amendment
– Religion

Introduction: Chapter looks at the First
Amendment’s two religious clauses –
establishment of religion, and the free
exercise thereof
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
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
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
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
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
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
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
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
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
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
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”
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
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
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”
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
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
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
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”
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)
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
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
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
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
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
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
Other Free Exercise Issues in
Prisons: cont’d

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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
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
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)
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
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
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
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
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
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
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
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
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
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
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