Constitutional Law Center for Muslims in America
SPRING 2021 ISSUE:
Prisoners are arguably some of the most vulnerable people in society. They have little control of their lives and are at the mercy of the prison’s officials and—by extension—the government. One thing prisoners do have relative control over is their religious exercise. The U.S. Constitution famously protects the right of all Americans to practice their chosen religion, and this right does not end when you are arrested. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Religious Freedom Restoration Act (“RFRA”) protect an inmate’s right to practice their religion with very minimal exceptions, but unfortunately, receiving these accommodations is not that easy.
Recently, something happened that momentarily shined a spotlight on this area of the law. Jake Chansley, better known as the QAnon Shaman, rose to infamy when he decided to storm the Capitol in protest of the certification of the electoral college votes. He was charged with crimes and is being detained while he awaits trial. However, Chansley made headlines once again for refusing to eat unless he was given organic food in accordance with his religious beliefs. Naturally, the internet erupted in jokes but what the meme-makers failed to understand is that he is, in fact, entitled to religiously compliant food. Ultimately, Chansley was forced to starve for three weeks and lost twenty pounds before receiving the food. Despite the treatment, Chansley still received the accommodation more quickly than the average prisoner.
America incarcerates the most people per capita in the world. Despite this, it is common for the layman—and indeed, many lawyers—to be unaware of the full extent of protections guaranteed to prisoners. This article seeks to inform on the religious rights of incarcerated people and it sheds light on common issues inmates may face.
I. Religious freedom protections.
The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” In other words, the government cannot take any actions to endorse any one religion. Though prisoners lose many of their rights when they become institutionalized, the right to free exercise is not one of them.
In relevant part, RLUIPA states that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in the furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling government interest.1, 2
Similarly, RFRA states that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”3 Like under RLUIPA, the government can only burden a person’s exervise if the burden is in furtherance or a compelling interest and is the least restrictive means available.4
Under both RLUIPA and RFRA, a prisoner’s right to exercise their religion is balanced against the government’s interests. While a person has an absolute right to believe whatever he/she wants to believe, no matter how outlandish, that person does not always have the right to do things because of their beliefs. For example, if a religious practice involved self-flagellation (i.e., flogging oneself, often for religious purposes) to the point of death, RLUIPA and RFRA would almost certainly not protect the right to practice this belief because it would be balanced against the compelling government interest of keeping its wards safe.
Because a strict scrutiny analysis is used (which is discussed below), the burden of proof is on the government to show that there are no less restrictive means to accomplish the compelling government interest at stake.
Under RFRA and RLUIPA, the three elements of a court’s inquiry are (1) substantial burden, (2) a compelling government interest, and (3) least restrictive means.
a. Substantial burden
Per RFRA and the RLUIPA, an inmate is not protected from any burden on their religious practice. Instead, they are only protected from a substantial burden. The substantial nature of the burden is almost always a fact-specific inquiry. The U.S. Supreme Court has stated that this element is satisfied when there is a substantial burden on the adherent to modify his or her behavior and to violate their beliefs.5, 6
b. Compelling government interest
When analyzing First Amendment questions under RFRA and RLUIPA, most issues are analyzed using various scrutiny levels—strict, intermediate, and rational basis scrutiny. The strict scrutiny standard is applicable when a suspect classification such as race, national origin, religion, or alienage is implicated. Under a strict scrutiny inquiry, the burden of proof is on the government. To pass the strict scrutiny standard, the government must show that a law furthers a “compelling governmental interest,” and the law must be narrowly tailored to achieve that interest.7
It should not be surprising that “compelling” is meant to be a higher interest than the “legitimate” or “important” thresholds in the other lesser scrutiny standards. An interest is compelling when it is essential rather than a preference or a matter of mere convenience. For example, administrative ease may not be a compelling interest, but it may be a legitimate or important interest.
c. Least restrictive means
When determining whether a law infringes upon a right guaranteed by the First Amendment, the Supreme Court has often used what is commonly referred to as the least restrictive means8 test. For the law to pass this test, the party with the burden of proof—here, the government—must show that there is no less restrictive way to accomplish its interest.9 The measure must be both related to a compelling government interest and the least restrictive means of accomplishing said interest. For example, it may be the least restrictive means of preventing displaying gang affiliation by banning common, or all, colors of headbands.
II. Barriers posed by the Prison Litigation Reform Act
Any discussion of prisoner rights and prison litigation would be incomplete without discussing the Prison Litigation Reform Act (“PLRA”). The PLRA was enacted in 1996 in response to a growing number of prisoner litigation that was inundating the federal courts.10, 11
Among other things, the PLRA includes an exhaustion requirement which means that before a prisoner may challenge a condition of their confinement in court, they must first exhaust any available administrative remedies.12 This provision has been widely criticized as a significant burden because the exhaustion policies can vary greatly by state and facility, and can take a significant amount of time. In Ross v. Blake, the Supreme Court recently carved out very minor exceptions to this requirement, but the fact remains that the vast majority of inmates with problems are forced through the rigamarole before they can seek relief from a court.
In addition, filing a lawsuit as a prisoner can be cost-prohibitive. Generally, a non-incarcerated person who files a lawsuit pro se may apply to file in forma pauperis meaning that they attest that they cannot afford court fees. Unfortunately, per the PLRA, inmates must pay the total fees. If an inmate qualifies for in forma pauperis status, he/she/they can opt to pay the fees in installments with a small amount due at the beginning. Additionally, the PLRA incorporates a “three strikes provision” meaning that if a prisoner is deemed to have filed a frivolous, malicious, or a lawsuit that fails to state a valid legal claim three times, he or she cannot file a lawsuit in forma pauperis. This may not be too much of a barrier for those not institutionalized, but when considering that inmates may make less than $10 a week, the cost of filing fees can be an insurmountable challenge made only a little more doable when owed in installations.13
The PLRA also limits attorneys’ fees, allows the defendant to not respond unless the court mandates them to, and allows the court to order the loss of any earned good-time credit if it finds that the lawsuit was filed for a malicious or harassing purpose.
There is a growing body of research on the correlation between religious activity in prison, recidivism, and disciplinary measures.14 Almost uniformly, this research suggests that if a person practices their chosen faith in prison, they had less disciplinary infractions and had a lower likelihood of returning to prison upon release. So, if someone is not convinced by the law and morality alone, perhaps they will be convinced by the likelihood of religious prisoners being “model” prisoners.
America was founded by Puritans fleeing religious oppression. It makes sense, then, that religious freedom was protected in the First Amendment. Despite this—and despite the multitudes of research suggesting a positive correlation between religious participation while incarcerated and lower rates of recidivism and disciplinary measures—inmates are forced to fight tooth and nail to practice their religion. Naturally, this difficulty is only compounded for any inmate who does not follow a mainstream form of Christianity.
1 42 U.S.C. § 2000cc–1(a) (2000).
2 The language of the Act states that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution…”” 42 U.S.C. § 2000cc–1(a). The definition of “institution” referred to by RLUIPA is “any facility or institution which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State” and which is, among others, “a jail, prison, or other correctional facility”. 42 U.S.C. § 1997(1) (1980).
3 42 U.S.C. § 2000bb–1(a) (1993).
4 42 U.S.C. § 2000bb–1 (b) (1993).
5 Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987).
6 See e.g., Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) (holding that failure to allow a Native American inmate to have long hair created a substantial burden on his religious exercise).
7 See, e.g., Holt v. Hobbs, 574 U.S. 352 (2015). In dicta, the Supreme Court acknowledged that “prisons have a compelling interest in the quick and reliable identification of prisoners;” however, the Court found that the policy at issue ultimately failed the strict scrutiny test due to a lack of narrow tailoring. Id. at 365–370.
8 This can also be referred to as narrow tailoring.
9 See e.g., United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 815 (2000) (stating “if a less restrictive means is available for the Government to achieve its goals, the Government must use it”); Holt v. Hobbs, 574 U.S. 352, 365–71 (2015) (holding that an outright ban on facial hair is not narrowly tailored to a compelling government interest); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (holding that even if the regulation at issue, which required corporations to provide health insurance coverage for contraception, was a compelling government interest, the regulation was not the least restrictive means of accomplishing the interest).
10 42 U.S.C. § 1997e (1996).
11 Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006) (Congress enacted the PLRA in 1996 in response to a significant increase in prisoner litigation in the federal court. To reduce the amount of prisoner litigation cases, Congress included a variety of provisions including an exhaustion provision.).
12 42 U.S.C. § 1997e(a) (1996).
13 John Boston, Jailhouse Lawyers Manual Chapter 14: The Prison Litigation Reform Act, http://jlm.law.columbia .edu/files/2017/05/26.-Ch.-14.pdf (last visited Mar. 18, 2021).
14 Jeanette Hercik, Prisoner Reentry, Religion and Research, https://peerta.acf.hhs.gov/sites/default/files/public/ uploaded_files/prisoner_reentry.pdf (last visited Mar. 18, 2021).