Beliefs Behind Bars: The Government's Role in Prison Prayer

Beliefs Behind Bars: The Government's Role in Prison Prayer

by Michelle Kaminsky, Esq., December 2009

Prisoners surrender many freedoms when the bars slam shut behind them. Most recently, the state of California has denied prisoners the right to smoke. However, practicing one's religion is not a right anyone has to abandon during incarceration. This is thanks to Congress's 2000 passage of the "Religious Land Use and Institutionalized Persons Act" (RLUIPA). Now, prison officials must accommodate the religious beliefs of inmates. Any restrictions on religious rights must be as minimal as possible. This law has not been followed with devotion though. Its constitutionality has been the subject of lawsuits since its enactment. Prisoners have sought accommodations for everything from kosher diets to American Indian sweat lodges.

Is the RLUIPA constitutional? Right now, it depends on where you live. However, the U.S. Supreme Court has agreed to hear these split decisions and will make the final pronouncement about RLUIPA.

In Cutter v. Wilkinson, the courts said no to a Wiccan, a Satanist, and a racial separatist. The court concluded that RLUIPA violates the Establishment Clause, which prohibits the government from advancing religion and requires the separation of church and state. The court argued that RLUIPA "has the effect of encouraging prisoners to become religious in order to enjoy greater rights." Also, constitutionality was questioned since the Act unfairly privileges religious rights above all other prisoner rights.

In Madison v. Riter, the Fourth Circuit sided with a Hebrew Israelite who requested kosher meals. Indeed, the court sided with nearly every other jurisdiction that has heard a challenge to RLUIPA. The court found the law a constitutional use of Congress's powers.

So, what "religious rights" are at stake? Accommodations for Muslims were common legal battles even before the 2000 law. For example, lawsuits requesting special meals during Ramadan were initiated before the law and still continue to roll in. In 2002, the Ninth Circuit found RLUIPA constitutional in shielding Muslims from being penalized for losing work credits for attending Friday services. In the same year, a Massachusetts court decided that prohibiting Muslim inmates from wearing kufis, bowl-shaped caps, violated their constitutional rights. Prison officials had argued kufis could be used to hide contraband.

A Massachusetts court has decided that prohibiting Muslim inmates from wearing kufis, bowl-shaped caps, violates their constitutional rights.

Hair length is another common point of legal contention. A lawsuit pending in Virginia challenges the grooming policy that requires inmates to keep their hair short. A few months ago, the Sixth Circuit denied a Cherokee inmate's request to grow his hair in accordance with his American Indian religious beliefs. Prison officials typically cite safety concerns in their refusal to allow hair growth.

Other than litigation over locks, American Indians have spent years fighting for other religious rights. An inmate in Utah and a group of inmates in Maine are currently seeking permission to build a religious sweat lodge. In this enclosed structure, water is poured over fire-heated rocks as the participant prays. Currently, most state and all federal prisons allow American Indians to perform this religious ceremony.

Kosher meals are common religious requests. In 2003, the California Department of Corrections agreed to provide kosher meals to an Orthodox Jew. Earlier this year in Virginia, a female Jewish inmate sued for her right to kosher meals. Mitzi Ann Hamilton argued that prison officials offer kosher options only in maximum security detention centers for women, whereas such meals are available for men in all security levels. Consequently, despite having the lowest security classification, Hamilton was placed under maximum security to fulfill her meal request.

Inmates are also fighting to obtain religious symbols and items for practicing certain religions. In one case, Utah inmate Phillip Leishman sued for access to wooden tablets with mystical symbols to practice his pagan religion. Prison officials countered that the tablets may be used for secret communications or gambling. A Wiccan inmate in Pennsylvania has sought use of tarot cards, oils, and pentagrams. Prison officials denied the request, calling these items forms of intimidation.

The future of religious practices behind bars will turn on whether the Supreme Court finds RLUIPA constitutionally valid or an unconstitutional blending of church and state. Even if the law is constitutional, prison officials may still restrict religious rights if they offer compelling reasons and limit freedoms as little as possible.

What will the Supreme Court decide? Organizations like the American Civil Liberties Union and the Baptist Joint Committee on Public Affairs agree the law is constitutional. Although one can predict for sure, these signs point to the likelihood that the Supreme Court will declare, to paraphrase another Supreme Court decision, that prisoners' religious rights do not stop at the jailhouse door. Surely that will be a day when the gods of all denominations will smile down on us.