Religious liberty behind bars: How free should prisoners be?

Sunday, July 25, 2004

Talk about unpopular lawsuits. This month three Oklahoma inmates, all convicted sex offenders, filed suit demanding to be fed kosher meals as required by their faith.

Oklahoma prisoners aren’t alone. Disputes over the denial of kosher meals have flared up in a number of states, including Virginia, where an inmate filed a lawsuit in April.

Keeping kosher in prison is just one of many religious-freedom claims being raised by prisoners throughout the nation. The cases cover the religious waterfront from the Taoist denied access to his scriptures to the Muslim restricted from using prayer oil.

When making their case for accommodation, prisoners now invoke the Religious Land Use and Institutionalized Persons Act (RLUIPA) — passed unanimously by both houses of Congress in 2000. The law was intended to restore First Amendment protections for religious freedom weakened in 1990 by the U.S. Supreme Court decision in Employment Division v. Smith.

RLUIPA works this way: Prison officials can’t impose a substantial burden on the free-exercise rights of prisoners unless they can demonstrate that the regulation serves a compelling state interest, such as prison safety. And that interest must be served in a way that is least restrictive to religious freedom.

The law isn’t intended to protect frivolous claims, only sincere religious beliefs. And even legitimate requests for accommodation aren’t automatically granted. To cite a recent example, a white supremacist claimed that his religious beliefs prohibited him from sharing a cell with someone from another race. He may be “sincere,” but a court ruled that prison officials had a compelling interest in not segregating inmates by race.

Safety, discipline, order — prisons have all sorts of “compelling interests.” Thus the courts often defer to the judgment of prison officials on issues related to security.

What about cost? Oklahoma officials are hoping that the judge buys their domino-effect argument: If the prison accommodates Orthodox Jews with kosher meals today, the prison will face 20 more demands for special religious diets tomorrow.

But it may not be enough to trot out a parade of horribles about potential costs or problems. When safety and discipline aren’t at stake, courts may well require prisons to ensure that inmates are able to practice their faith. In 2002, for example, the 10th U.S. Circuit Court of Appeals ruled that the state of Colorado must provide kosher meals to Jewish prisoners.

Not surprisingly, many prison officials don’t want to jump through RLUIPA hoops in the first place. Their question: Should people convicted of a crime have a right to religious freedom while in prison?

My answer is “yes,” mostly for two reasons.

First, religious freedom isn’t a right given by the government — and it can’t be taken away by the government. It is one of those “unalienable rights” believed by Thomas Jefferson and our other Founders to be the birthright of every human being.

Of course, the rights of inmates are necessarily limited by the rules and regulations of the prisons. But in a society committed to protecting religious freedom, the state should have very good reasons before denying any person — including a prisoner — the right to practice his or her religion.

Second, it’s generally good for society to encourage inmates to observe their faith. True, not all religious beliefs and practices are conducive to good behavior (white supremacy comes to mind). But in most cases, religious faith can be counted as a big plus for rehabilitation.

Despite these arguments, it’s unlikely that “kosher meals for sex offenders” will become a rallying cry for religious liberty. But fortunately for prisoners (and for all of us), protecting religious liberty isn’t a popularity contest — and the First Amendment isn’t up for a vote.