Read and Summarize what you learned from this chapter ?

The First Amendment to the United States Constitution states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."1 An obvious contradiction exists within the two clauses of this Amendment: the establishment clause and the free exercise clause. This contradiction is particularly apparent when the amendment is applied to the prisoners of correctional systems.

In Gittlemacker v. Prasse,2 the inherent difficulty in applying First Amendment religious freedom to prisoners is pointed out:

The requirement that a state interpose no unreasonable barriers to the free exercise of a prisoner's religion cannot be equated with the suggestion that the state has an affirmative duty to provide, furnish, or supply every prisoner with a clergyman or religious services of his choice. It is one thing to provide facilities for worship and the opportunity for any clergy to visit the institution. This may be rationalized on the basis that since society has removed the prisoner from the community where he could freely exercise his religion, it has an obligation to furnish or supply him with the opportunity to practice his faith during confinement. Thus, the Free Exercise Clause is satisfied.

But to go further and suggest that the free exercise clause demands that the state not only furnish the opportunity to practice but also supply the clergy is a concept that dangerously approaches the jealously guarded frontiers of the establishment clause.

The existence of this conflict between the free exercise clause and the establishment clause provides one explanation for the recognition by the courts of a need to balance the interests of the state with the interests of the prisoner. Although the state interest in avoiding the establishment of religion is a problem of constitutional proportions, this interest has not negated the equally significant right of the prisoner to the free exercise of his or her religious beliefs.

Despite the difficulty in balancing these two fundamental and conflicting rights, courts have given increasing attention to the needs of prisoners in this area. The traditional reluctance of the judiciary to interfere in the management of a prison3 is no longer apparent. Rather than simply dismissing an action, as in the past, the courts are now giving recognition to the existence of First Amendment rights behind prison walls. Furthermore, they have required prison officials to provide a reasonable explanation for any attempt to limit such rights.

The requirement for prison officials to explain their rationale for impeding the free exercise of religion was pointed out in Barnett v. Rodgers,4 where the court stated:

To say that religious freedom may undergo modification in a prison environment is not to say that it can be suppressed or ignored without adequate reason. And although "within the prison society as well as without, the practice of religious beliefs is subject to reasonable regulation necessary for the protection and welfare of the community involved," the mere fact that government, as a practical matter, stands a better chance of justifying curtailment of fundamental liberties where prisoners are involved does not eliminate the need for reasons imperatively justifying the particular retraction of rights challenged at bar. Nor does it lessen governmental responsibility to reduce the resulting impact upon those rights to the fullest extent consistent with the justified objective.5

In Employment Division, Department of Human Resources of Oregon v. Smith,6 two Native Americans were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. The Supreme Court held that the free exercise clause permitted the state to prohibit sacramental peyote use and to deny unemployment benefits to persons discharged for such use. Although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. However, a prison chaplain who engages in inherently ecclesiastical functions, even if a full-time state employee, is not a "state actor" for purposes of the Civil Rights

In response to demands of the courts, prison officials have provided a number of explanations for the restrictions they have placed upon prisoners' free exercise of religion. Among these are (1) the maintenance of discipline or security, (2) proper exercise of authority and official discretion, (3) the fact that the regulation is reasonable, and (4) economic considerations. Frequently, these explanations are used interchangeably by the courts, and it is sometimes difficult to determine which justification was the basis of the decision. However, in most cases, if prison officials are able to show that restrictions on religious practices are actually based upon one or more of these reasons, the courts will allow the restrictions to continue. In addition to providing explanations for the restrictions placed upon the prisoners' free exercise of religion, prison officials and the courts have attempted to define what a "religion" is and what "religious practices" are for purposes of First Amendment protection. Unfortunately, few precise guidelines have emerged.8

Restrictions on access to "religious opportunities"whether group services, chapel visits, or meetings with religious advisersare reviewed in light of four factors: (1) whether there is a "valid, rational connection" between the regulation and a legitimate government interest put forward to justify it; (2) "whether there are alternative means of exercising the right that remain open to prisoners;" (3) whether accommodation of the constitutional right would have a significant impact on guards and other prisoners; and (4) whether available alternatives are absent, bearing on the reasonableness of the regulation.

Prison officials are obligated to maintain security and discipline within the institution. For this reason, the courts analyze restrictions of religious freedom within the prison setting in the framework of that obligation. A proper justification by prison officials of the need for such restrictions will frequently result in its approval by the courts. Indeed, the duty of prison officials to maintain security within an institution is the most frequently cited justification for limiting a prisoner's religious freedom.

In Jones v. Willingham,10 the court, concerned with the trouble allegedly caused by Black Muslims in the early 1960s and the fact that the prisoner was confined at the maximum-security U.S. Penitentiary in Leavenworth, Kansas, held that the warden had a duty to prevent disruptions and thus concluded that there was no religious discrimination under the facts of the case. In St. Claire v. Cuyler,11 the court held that a reasonable relationship to security interests justified the denial of a prisoner's request to attend religious services. The prisoner had the burden to prove by substantial evidence that the security concerns were unreasonable or exaggerated.

In Wojtczak v. Cuyler,12 a Pennsylvania court held that prisoners confined in segregation for their own safety may not be unduly restricted in the rights held by prisoners in the general population. However, the prisoner bears the heavy burden of disproving a claim that different treatment is based upon genuine security considerations. This rationale likewise was applied in McDonald v. Hall.13 The appellate court took notice of an affidavit, filed by prison officials, which indicated that allowing segregated prisoners to attend services outside of their unit would pose a safety threat. The court upheld the officials' decision because it was neither arbitrary nor capricious.

In Cooper v. Pate,14 the court allowed prison officials to restrict the religious freedom of certain individuals where the officials showed that such free exercise had been abused at a prior time. It held that, although a complete ban on religious services was discrimination, precautions that were necessary for security would be sanctioned. Prisoners with records of prior misconduct "which reasonably demonstrates a high degree of probability that the individual would seriously misuse the opportunity for participation with the group"15 could be excluded from religious services at the authorities' discretion.

The use of the "clear and present danger" test enunciated by the Supreme Court16 as a valid reason for limiting First Amendment freedom of speech was utilized by analogy in Knuckles v. Prasse.17 Certain infringements of religious freedoms were permitted because they presented a "clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution."18 The court further stated that prison officials had the right to be present and to monitor religious services and if the services became nonreligious, the authorities could cancel them."19 The court further found that its "task is not to evaluate plaintiffs' religious wisdom but rather to determine whether regulations of that religion in a prison context are reasonable."20

Female prisoners unsuccessfully contended that a Washington State prison policy subjecting fully clothed female prisoners to random "pat searches" by male as well as female correctional officers infringed their religious freedom.21

The female prisoners' beliefs prohibited them from being touched by men other than their husbands. The majority of the court concluded, however, that the policy was reasonably related to prison officials' legitimate interests in institutional security and that it therefore passed muster under the standard set in Turner v. Safley.22 The majority relied on the testimony of prison officials that the same-sex searches would conflict with the officers' collective bargaining agreement, create security problems by requiring female guards to leave their posts to conduct the searches, and make the searches more predictable.

The argument that control over religious freedom in prison is a proper subject for the exercise of authority and official discretion is a carryover from the historical approach of noninterference by the judiciary. Although this argument is now subject to closer court scrutiny, it has not been completely abandoned. Knuckles v. Prasse again pointed out that constitutional standards for the practice of religion in prison must be analyzed in the realistic context of the prison situation. The process requires a balancing of broad discretionary powers vested in prison officials with the right of prisoners to practice religion in a prison.24

The noninterference approach was further evidenced in Kennedy v. Meacham,25 a case involving the free exercise of the "Satanic religion." The court recognized that matters of prisoner regulation and discipline are to be left to the discretion of prison authorities as long as the officials' conduct does not involve the unreasonable deprivation of constitutional rights and is not clearly capricious or arbitrary. The court held that the state's interest in the proper administration of its penal system outweighs a prisoner's right to organize a branch of his or her sect within the prison. The prisoner's request to hold meetings was denied in view of his inability to provide the name of a sponsor or information relating to the proposed activities of the group. Safety considerations also justified the denial of the use of candles or incense in a cell. Denial of the right to borrow library books for group use was consistent with general prison policies, and, in any event, the prisoner was not prejudiced because he owned many of the books himself.

Another case in which the significance of unlimited discretion exercised by prison officials was reviewed is Belk v. Mitchell.27 The prisoner was placed in solitary confinement for 30 days, and his request to attend Sunday services was denied. The court held:

If the solitary confinement itself is justifiable, then it would seem entirely reasonable to allow some discretion to the prison authorities whether to allow or not allow the Sunday morning commingling of solitary prisoners with the others. Prison authorities of course have no right to restrict the prisoner's freedom of religious beliefs and convictions. However, absent a showing of prolonged and unjustifiable discrimination, his "public" exercise of his religious beliefs and his access to publicly provided chaplains during temporary punitive solitary confinement would seem to be matters within the reasonable discretion of the prison authorities.28

Similarly, in Mims v. Shapp,29 the denial of congregational prayer to prisoners in a segregation unit was held not to have been an improper denial of the right to practice religion but rather a proper exercise of official discretion. Another case in which the significance of unlimited discretion exercised by prison officials was reviewed was Wojtczak v. Cuyler.30 The court held:

Prisoners confined for their own safety in segregation may not be unduly restricted in the rights held by prisoners in the general population. However, the prisoner bears a heavy burden to disprove a claim that different treatment is based upon genuine security considerations.... The state must permit the prisoner in segregation to receive both a chaplain and communion in his cell... but need not escort him to the prison chapel.31

Sweet v. Department of Corrections32 recognized the need for broad official discretion in light of the peculiar problems necessary to the maintenance of a prison. Because prison society is both sensitive and explosive, it is necessary for those with experience to make decisions in light of their particular knowledge. For this reason, prison authorities may adopt any regulation dealing with the prisoners' exercise of religion that may be reasonable and substantially justified by consideration of prison administrative requirements. The court rationale in the Sweet decision is significant in that, like most courts, it demonstrates a certain hesitancy to interfere with the internal management of a prison.

Another relevant and closely related issue in discussing official discretion arises when arguments are made that prison rules and regulations are capricious and arbitrary. This was pointed out in In re Ferguson,33 in which the court discussed the reasonableness of a regulation restricting the activities of Black Muslims. The court stated:

[I]n the instant circumstances, the refusal to allow these petitioners to pursue their requested religious [activities] does not appear to amount to such extreme mistreatment, so as to warrant the application of whatever federal constitutional guarantees which may exist for the protection of prisoners in state prisons. *** We are... reluctant to apply federal constitutional doctrines to state prison rules reasonably necessary to the orderly conduct of the state institution.

*** Even conceding the Muslims to be a religious group it cannot be said under the circumstances here presented that the Director of Corrections has made an unreasonable determination in refusing to allow petitioners the opportunity to pursue their claimed religious activities while in prison.34

The court then determined that in view of the inflammatory nature of the Black Muslims' interpretation of the Koran, the officials were under no obligation to retract a restriction on its use.

Although carefully constrained, economic considerations are another factor cited by prison administrators as justification for controlling prisoners' free exercise of religion. In Gittlemacker v. Prasse,35 a Jewish prisoner alleged a violation of the First Amendment because the state did not provide him with a rabbi. The court stated that the requirement that a state interpose no unreasonable barriers to the free exercise of a prisoner's religion could not be equated with the suggestion that the state had the affirmative duty to provide, furnish, or supply every prisoner with clergy or with religious services of his or her choice. The court pointed out that it was no great burden on the institution or on prison officials to provide facilities of worship and the opportunity for clergy to visit the institution. This requirement could be rationalized on the basis that, because society had removed the prisoner from the community where he could freely exercise his religion, the state had an obligation to furnish or supply the prisoner with the opportunity to practice his faith. But to go further and suggest that the free exercise clause demands that the state not only furnish the opportunity to practice but also supply the clergyman is a concept that dangerously approaches the jealously guarded frontiers of the establishment clause.36

The court pointed out that the sheer number of religious sects was a practical consideration. It suggested that there were perhaps 120 distinct established religious denominations in the state. To the court, it became readily apparent that to accept the prisoner's contention was to suggest that each state prison have an extravagant number of clergy available. Although the court did not address this question, it did recognize that explicit in the First Amendment were two separate and distinct concepts designed to guarantee religious liberties: (1) the establishment clause and (2) the free exercise clause. The court also recognized that under the circumstances of the case, a slavish insistence upon a maximum interpretation of rights vested in one clause would collide with the restrictions of the other clause. Using the analogy of school prayer cases, the court approved the language:

It is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent, and, in the words of Madison, "it is proper to take alarm at the first experiment on our liberties."37

In Gittlemacker, the prisoner alleged that the officials denied Jewish prisoners a rabbi in regular attendance, although they provided Catholic and Protestant chaplains. The response of the prison superintendent was: "The small number of Jewish prisoners at Dallas, usually two or three, makes the use of a full-time rabbi economically unfeasible and unwarranted."38 The court also found that the superintendent had, on numerous occasions, attempted to secure the services of a rabbi for Jewish prisoners. It was asserted that the official intended to have him come to the institution on a fee basis. The court concluded that the prisoner's claim of religious discrimination was effectively and conclusively refuted.

In Walker v. Blackwell,39 Muslim prisoners proposed that they be provided with a special meal during Ramadan, their religious period, and that it be served after the normal dinner time, but at a time that would not interfere with their work schedules. Prisoners asserted that the cost of purchasing the special foods would not be prohibitive and that, under present conditions, they could not make adequate selections from the menus prepared because pork was included. The prison officials' argument was that they could not afford to buy the various special items within the limits of the existing budget. They further pointed out that while once-a-year special purchases were made for Passover, the Muslims were requesting 30 days of special menus.

With respect to the after-sunset meals, the court felt that supplying such meals could only be done at a prohibitive cost. It held further that there were problems of security and additional staff involved in serving Muslims after all other prisoners had eaten. In the court's opinion, considerations of expense and security outweighed "whatever constitutional deprivation petitioners may claim. In this regard... the government has demonstrated a substantial compelling interest."40

The same analysis has been applied to the kosher food cases brought by Jewish prisoners. Represented by the holding in Kahane v. Carlson,41 the attitude of the courts appears to be that there is no obligation to provide all Jewish prisoners with kosher food on a full-time basis. However, the Ninth Circuit held that a policy of serving only one kosher meal per day to Orthodox Jewish prisoners imposes an impermissible burden on the free exercise of religion. In place of expensive frozen dinners, prison authorities could supply foods such as whole fruits, tinned fish, and kosher cereals that met kosher standards.42

A significant U.S. Supreme Court case concerning prisoners who were members of the Islamic faith was O'Lone v. Estate of Shabazz.43 Prisoners argued that prison policies prevented them from attending Jumu'ah, a congregational service held on Friday afternoons, and thereby violated their rights under the free exercise clause of the First Amendment. The first policy required prisoners in the prison's custody classifications to work outside the buildings in which they were housed and in which Jumu'ah was held, while the second prohibited prisoners assigned to outside work from returning to those buildings during the day.

The Court held that there was no burden on prison officials to disprove the availability of alternative methods of accommodating prisoners' religious rights. The Constitution allows respect for and deference to the judgment of prison administrators. The policies were reasonably related to legitimate penological interests and therefore did not offend the free exercise clause of the First Amendment. Both policies had a rational connection to the legitimate governmental interests in institutional order and security invoked to justify them. One was a response to critical overcrowding and was designed to ease tension and drain on the facilities during the part of the day when the prisoners were outside. The policy was necessary because returns from outside work details generated congestion and delays at the main gate, a high-risk area. Decisions involving return requests placed pressure on officers supervising outside work details. Rehabilitative concerns also supported the policy as corrections officials sought to simulate working conditions and responsibilities in society. Although the policies may have prevented some Muslim prisoners from attending Jumu'ah, they did not deprive the Muslims of all forms of religious exercise. There were no obvious, easy alternatives to the policies because both of the suggested accommodations would, in the judgment of prison officials, have adverse effects on the prison institution. Placing all Muslim prisoners in inside work details would be inconsistent with the legitimate prison concerns, while providing weekend labor for Muslims would require extra supervision that would be a drain on scarce human resources. Both proposed accommodations would also threaten prison security by fostering "affinity groups" likely to challenge institutional authority, while any special arrangements for one group would create a perception of favoritism on the part of other prisoners.

Although prison officials argued that even if the prison's policies of punishing Muslim prisoners for one hour of weekly Jumu'ah attendance imposed a substantial burden on their exercise of religion, the state had a compelling interest in administering a work incentive program. The program provided for safety and security in prisons and prevented prison conditions from deteriorating. The absence of the prisoners for about one hour on Fridays would not disrupt the operation of work incentive programs, and even assuming that the state's asserted interests in keeping prisoners occupied and using their labor for prison upkeep were sufficiently compelling, prison officials did not demonstrate that the policy with respect to Jumu'ah, in particular, was the least restrictive means to achieve those interests.

The cases dealing with religious freedom frequently refer to the Equal Protection Clause of the Fourteenth Amendment.45 Section I of that amendment provides in part: "Nor shall any state... deny to any person within its jurisdiction the equal protection of the laws."46

The application of the Equal Protection Clause is particularly relevant in cases dealing with minority religions. This was apparent in Newton v. Cupp,47 in which the court stated: "If members of one faith can practice their religious beliefs and possess religious materials, equivalent opportunity must be available to members of another faith."48

The soundness of this decision is apparent from the Supreme Court's subsequent decision in Cruz v. Beto,49 holding that Texas prison officials had discriminated against a prisoner by denying him a reasonable opportunity to pursue his Buddhist faith comparable to that offered other prisoners adhering to conventional religious precepts. Similarly, in People ex rel. Rockey v Krueger,50 the court found that because an orthodox Jew would be allowed to retain his beard without being placed in solitary confinement, a Muslim who had been placed in solitary confinement for not shaving his beard was entitled to be released. Thus, because prison policy permitted orthodox Jews to wear beards, other religious beliefs requiring beards could not be suppressed even in the face of a Commissioner of Correction's Regulation, which required that prisoners be "clean-shaven."

In Konigsberg v. Ciccone,51 a prisoner alleged the denial of the right to exercise his religion. He claimed that while he was confined in close custodial supervision, he was not permitted to attend any religious services. Further, when he was transferred from such custody, his attendance at Jewish religious services was conditioned upon a pass, issued specifically for that purpose. On the other hand, Protestant and Catholic prisoners in close custody confinement were allowed to attend services. The prison officials established that the Protestants and Catholics did not need passes to attend services because those services were held at a time when no other activity was in progress. Thus, the destination of people moving through the corridors could be easily identified. Also, it was proved that sufficient staff were available to guarantee security at that time. However, prison officials stated that prisoners who attended services at times other than Sunday needed passes to move through the corridors just as any other prisoner would at the same time.

The court would not accept as reasonable the prison officials' basis for denying minority religions the right to attend services while at the same time permitting Protestants and Catholics to do so. The court said that it was unrealistic to take the position that sufficient escorts were not available to conduct them to services "in view of the high importance the law places on the right to worship and [on] the right to be free of religious discrimination."52 The court then directed that such a prisoner be allowed to attend religious services unless: (1) his physician certified medical reasons, (2) there was proof that the prisoner was a dangerous security risk, or (3) his attendance would substantially and adversely affect security.

In Cooper v. Pate,53 the court stopped prison officials from preventing a prisoner's communication (by mail and visitation) with ministers of his faith, subject to usual prison regulations. The court felt that such communication did not present a clear and present danger to prison security and that to grant it to one faith but deny it to another was religious discrimination. However, the prisoner also wished to purchase Swahili grammar books. He pointed out that prisoners were allowed to purchase foreign language books. The lower court held that these books were not necessary for the practice of the prisoner's religion and that the denial was based on staff and facility limitations. The court of appeals affirmed the holding that this involved no impairment of a constitutional right.

While the right of Black Muslims to practice their religious beliefs dominated the litigated cases in the past, controversy over this right has declined. Issues such as the right to attend services, to obtain literature, and to wear religious medals were usually raised by Black Muslims because, unlike Protestant or Catholic prisoners, the Black Muslims had been denied the right to engage in such practices. The threshold question was the recognition of the Black Muslim faith as a religion. It has been recognized as a religion in several cases54 and, for this reason, it can now be assertedat least in theorythat a Black Muslim prisoner retains the same constitutional protection offered to members of other recognized religions.

Despite the general recognition of the Black Muslim faith as a religion, certain specific problems remain relative to the free exercise of its beliefs. Those problems, although usually presented by Black Muslim petitioners, are common among all prisoners seeking to exercise religious freedoms. For this reason, it must be assumed that the rights accorded by the judiciary to the Black Muslim prisoner must also be rendered to all recognized religions. The general applicability of these decisions to all recognized religions practiced within penal institutions is consistent with the constitutional mandate of the First Amendment and the Equal Protection Clause.

Numerous cases have recognized the Black Muslims' right to hold some sort of religious service.55 However, the cases in which this right was not extended were usually based upon the belief that a congregation of Black Muslim prisoners would result in some security risk. This was apparent in the decisions of Jones v. Willingham56 and Cooke v. Tramburg.57 In the first of these decisions, Jones, the court refused to grant the Black Muslims the right to assemble for worship. The court based its decision on the duty of the warden to prevent breaches of security. It asserted that, in view of the possibility of disruptions resulting from a congregation of Black Muslims, the restriction was a valid exercise of the warden's duty. In Cooke, the court also denied the right to hold religious services because of the danger it believed was inherent in such assemblage. According to Cooke, the freedom to exercise religious beliefs is not absolute but is subject to restriction for the protection of society as a whole.

However, Banks v. Havener58 held that a prison could not prohibit the practice of an established religion unless it could prove that the teaching and practice of the Act created a clear and present danger to the orderly functioning of the institution. Absent such evidence, the court in Battle v. Anderson59 found that the policy of prison officials of denying to all prisoners, including Muslims, the opportunity to gather together for religious services, was unjustified.

Examples of cases concerning the right of nontraditional religious groups to hold services are Theriault v. Carlson60 and Remmers v. Brewer,61 both dealing with a prisoner-created religion based on the Eclatarian faith and organized around The Church of the New Song of Universal Life. In Theriault, the prisoner who created the religion and who was head of the newly developed church was confined in punitive segregation for attempting to hold religious services to promote the new belief. Although the district court ordered his restoration to the general prison population and directed prison officials to permit the prisoner to hold religious services, this ruling was overturned on appeal and remanded for an evidentiary hearing.62 On remand, a different district court concluded that the Eclatarian faith was not a "religion" entitled to First Amendment protection, but was rather "a masquerade designed to obtain protection for acts which otherwise would have been unlawful and/or reasonably disallowed by various prison authorities."63

While failing to provide a precise definition of what a "religion" is for purposes of First Amendment protection, the court declared that such protection does not extend to so-called religions "which tend to mock established institutions and are obviously shams and absurdities and whose members are patently devoid of religious sincerity."64

Essentially the same issue was present in Remmers, but the court in that case, while aware of the holdings in Theriault, nevertheless decided that the Eclatarian faith was a "religion" and that members of such religion were entitled to protection under the free exercise clause. However, the court declared that if it were subsequently proved that the Eclatarian faith, as practiced at the prison, was in fact a sham, then the prison administrators and the court could deal with the eventuality. These two decisions highlight the continuing legal problem facing prison administrators when apparently inconsistent decisions are rendered by different federal courts, and the United States Supreme Court is either unwilling or unable to resolve the conflict.

A number of courts have adjudicated petitions that have alleged that religious liberties were denied when authorities prohibited attendance at general services while the petitioner was confined in a maximum-security unit (correctional cell).65 A majority of these courts dismissed the complaint and distinguished between one's freedom to believe and one's freedom to exercise one's belief. Such a restriction on the free exercise of beliefs is justified on the basis of maintaining both security and correctional discipline.66

A Mississippi court67 indicated that full access to a minister of one's denomination while confined in a correctional cell satisfies the constitutional right to free exercise of religion. This case could be cited for two propositions: (1) that it is not necessary to release prisoners from maximum-security cells to attend services with the general population, or (2) that it is not necessary to conduct formal services for prisoners confined in correctional custody. Note, however, that this court held that full access to a minister of one's denomination satisfied the constitutional requirements. Another court,68 however, ruled that the petitioner who was being held on death row be permitted to attend midweek services in the chapel instead of having to receive communion and services in a shower room.

Prison rules and policies prohibiting prisoners from leading religious services and requiring that all services be conducted in an interfaith chapel do not violate the Equal Protection Clause.69 Further, a prison regulation prohibiting prisoners from leading religious groups is valid under the First Amendment if it is reasonably related to legitimate penological interests.70

Although a prisoner espoused a religion that included a belief in Caucasian supremacy and asserted that prison officials unlawfully refused to allow television programming concerning his religion while allowing other religious programming, there was no First Amendment violation because there was no showing that the prison's religious television programming favored any particular religion. The same result applied when the prisoner was denied group worship rights when other religions that practiced segregation were permitted group worship. The prisoner was not similarly situated to members of the other religions because other religions did not have separatism as a central religious tenet.71

A prison policy required that disqualification from participation in one religious exercise (the fast) meant that normal avenues for communal worship (group services and prayers) at the prison became unavailable automatically. When this broad disqualification aspect of policy was applied to a Muslim prisoner, he was forced to modify significantly his religious behavior, and his right to religious exercise was substantially burdened. The prison officials failed to show that its Ramadan policy was the least restrictive means of furthering a compelling governmental interest.72 However, prison rules that prohibited Muslim prisoners from engaging in Friday afternoon prayer services were reasonable as the prisoners were allowed to participate in other weekly religious services and to have free access to the prison's imam.73

Religious exercise is not only a prisoner's ability to practice his religion as a whole but his ability to engage in group worship.74 Prisoners in "punitive segregation and keeplock" could not be denied participation in chapel services simply on the basis of their classification. Individualized determinations of the "necessity of their exclusion" were required.

In general, the courts have recognized that Black Muslims have a right to possess and wear religious medals.76 This recognition has, in at least two cases,77 been based upon the fact that prisoners practicing other religions had been given such a right by prison officials. However, the issue of internal security has been asserted in this area as well as in the other areas concerning religious freedoms. In Rowland v. Sigler,78 the court thought that, in view of the possibility of a prisoner using a medallion as a weapon, prison officials could justifiably prohibit the prisoner from wearing the medallion. Any possible infringement of First Amendment rights was justified by the state interest in regulating the nonspeech aspect, i.e., the use of a medallion as a weapon. This case would not, of course, support the denial (by prison officials) of medallions to Black Muslims where officials permitted medallions to be worn by those of other religions.

Numerous prisoners have petitioned the court for the right to correspond with Elijah Muhammad, a Black Muslim leader. Some institutions have a general restriction pertaining to correspondence with heads of religious groups. This regulation is based on the theory that such communications are not "meaningful contacts."79 Occasionally, courts have accepted this rationale and have held that because the policy applies to all religions, it does not result in religious discrimination. However, in Walker v. Blackwell,80 when prison officials gave as their reasons for not allowing such correspondence the fact that Elijah Muhammad had a prison record and that the prison had a general policy not to allow Catholics to correspond with the Pope, the court held that Elijah Muhammad's confinement had occurred more than 25 years earlier, that a criminal record was only one factor to be considered in approving a correspondence according to the Bureau of Prisons, and that "[t]he prohibition against Catholics' correspondence with the Pope is of questionable constitutional merit."81 Nevertheless, both Theriault and Remmers expressly declare that prison authorities may ascertain the contents of such correspondence with religious leaders in order to make certain that what is sought is spiritual guidance and advice and that such correspondence is not used for anything other than religious purposes.

Although there is no case that recognized an absolute right of a prisoner to proselytize, members of all religions share the same right to proselytize in prison. This right does not extend, however, to such activity that would create a disturbance or interfere with the privacy rights of other prisoners.83 Furthermore, when the purpose of proselytizing is "to cause or encourage disruption of established prison discipline for the sake of disruption," such activity enjoys no First Amendment protection because it is not based on an underlying "religion."84 In Fulwood v. Clemmer,85 prison authorities presented evidence to show that the prisoner's "field preaching" had resulted in a disturbance among the other prisoners. As a result, he had been placed in solitary confinement for six months, excluded from the prison population for two years, and denied the use of rehabilitation and recreational facilities. The court held that this punishment was not reasonably related to the infraction.

Proselytizing can also be done by prison employees. In a Ninth Circuit case, a guard's unauthorized religious proselytizing while on the job did not violate a county jail prisoner's rights under the First Amendment.86

Preaching is a form of religious exercise. In Spratt v. Rhode Island,87 the court held that a prisoner's religious exercise had been substantially burdened where prison officials would not allow him to preach anytime or anywhere, threatening that if he did so, he would be subject to disciplinary sanctions. Prison officials failed to show that the blanket ban on all preaching was the least restrictive means available to achieve its interest.

The cases dealing with the right of a prisoner to have access to a minister have been inconsistent. In two of these cases, Jones v. Willingham88 and Coleman v. Commissioner,89 the courts held that the prison officials could exclude Muslim ministers for protection or for security in the institution. In Cooper v. Pate,90 however, the court enjoined the administration from refusing to permit a prisoner to communicate through the mail or personal visitation with the ministers of their faith. As such communication did not constitute a clear and present danger to prison security and such communication was permitted for other religious denominations, the restriction against the Black Muslims was discriminatory.

There can be little doubt, irrespective of the controversy regarding security within the institution, that Muslim ministers, once admitted to the institution, must be permitted to wear such religious robes and raiment as they desire.91 Furthermore, they must be paid at an hourly rate comparable to that paid to chaplains of other faiths.

As a general rule, the courts have refused to order prisons to provide Muslims with pork-free meals, despite the fact that such dietary restraint is an essential doctrine found in that faith. The rationales for such refusal have been diverse. For example, in Northern v. Nelson,93 in which the Muslim prisoner sought special meals during the period of Ramadan, the court asserted that budgetary restrictions constituted a justifiable reason for refusing to serve pork-free meals. The court found that, despite the constitutional deprivations claimed, the government had demonstrated a substantial compelling interest and, for that reason, dismissed relief.

Childs v. Pegelow94 justified the failure to provide pork-free meals by finding that a prisoner could acquire adequate nourishment by avoiding pork foods. In view of this fact, the prison was under no obligation to provide specified meals. The court simply found that no constitutional issue was involved and that, essentially, the Muslims were demanding special privileges rather than constitutional rights.

A unique approach to the issue of pork-free meals is found in Barnett v. Rodgers.95 The District of Columbia Circuit Court held that the lower court erred in dismissing the prisoner's complaint without determining whether the government had compelling justification and purposes for denying their request. The court believed that the prison officials had not adequately demonstrated a budgetary constraint that would prevent the use of pork and had not shown why they could not post a menu or why they could not distribute pork meals more evenly throughout the week. "To say that religious freedom may undergo modification in a prison environment is not to say that it can be suppressed or ignored without adequate reason."96 On remand, however, final judgment was entered in favor of the prison superintendent.97

In McEachin v. McGuinnis,98 the court ruled that a seven-day restrictive diet imposed upon on prisoner as discipline impinged upon his observance of Ramadan. The diet deprived him of properly blessed food with which to break his daily fast. Further, the discipline was a product of religious discrimination by a correctional officer who intentionally ordered the prisoner to return his tray and cup during the prisoner's prayer, knowing that his beliefs would not permit him to respond to such a command before he had finished making salat.

In Williams v. Bitner,99 a Muslim prisoner refused to handle pork in his job as a prison cook. The prisoner did not act improperly or disruptively, and he completed all other tasks he had been assigned in the kitchen. He objected only when officials directed him to assist in activities that violated his sincere religious beliefs, and his protests were limited to simple refusal and explanation, without threat or show of disrespect. As punishment, he was issued a misconduct citation, placed on cell restriction, and reassigned to a lower-paying job. The Third Circuit agreed with decisions from the Fifth, Seventh, and Eighth Circuits that prison officials were required to accommodate a Muslim prisoner's religious beliefs regarding the handling of pork and that the actions of prison officials in this case were not the least restrictive means of maintaining institutional order and security.

Though the analysis employed in the Muslim food cases generally has been echoed in the Jewish kosher food cases, cases out of New York have added much to the discussion of the kosher food question. Within two days of one another, two federal district courts in New York came to apparently opposite conclusions. Both cases involved Jewish prisoners who had asked the court for orders directing the Bureau of Prisons to make kosher foodsmeeting the requirements of Jewish orthodox dietary lawsavailable to them during their incarceration.

In the first case, United States v. Huss,100 the court ruled that the prison was not obligated to provide kosher food. In arriving at this conclusion, the court relied on four primary considerations: (1) the extra cost of providing kosher foods to Jewish prisoners on a regular basis; (2) the obvious problems that would arise from special treatment given to such prisoners; (3) the security risk involved, given the relative ease of smuggling contraband to a prisoner when it is known that the food is for a designated prisoner; and (4) the availability of substitute foods to ensure a sufficient diet. On appeal, this judgment was vacated on procedural grounds.101

The second case, United States v. Kahane,102 involved the kosher food requests of an orthodox rabbi. In this case, the court decided that the prisoner was entitled to receive kosher meals. It was reasoned that comparatively simple administrative proceduresi.e., a combination of pre-prepared frozen kosher meals and suitable dietary alternativeswould result in a nutritionally sound diet consistent with kosher requirements. In the court's opinion, the government had shown no serious reasons why providing a kosher diet for the prisoner would affect prison security or discipline.

The conflict arising from these two cases is somewhat settled by Kahane v. Carlson.103 In this decision, the Second Circuit Court of Appeals affirmed and modified United States v. Kahane. The court agreed that the finding of deep religious significance for a practicing orthodox Jew was justified and was entitled to constitutional protection. It was explained that the difficulties encountered by the prisons were surmountable in view of the small number of practicing orthodox Jews in federal prisons (approximately 12).104 The court clarified and modified the district court's decision by explaining that the use of frozen prepared kosher foods, while helpful, was not constitutionally required. Rather, the prison was required to provide the incarcerated orthodox rabbi with a diet sufficient to sustain his good health without violating Jewish dietary laws. However, the court did not mandate specific items of diet.

While the court ordered the provision of a kosher diet in this instance, it should be noted that this does not necessarily apply to all Jewish prisoners. The application of this decision seems to require a situation involving a practicing orthodox Jew before a prison is required to provide a kosher diet.

Prisoner access to religious literature remains a controversial issue. The justification for suppressing religious literature that prison administrators frequently advance is that the material is inflammatory and will cause disruptions and breaches in security. Consequently, the decisions usually turn on when the court believes that the material requested is of a nature tending to incite disruptions or security problems. A case finding no such tendency is Northern v. Nelson.105 Here, the court held that the prison library was under an obligation to make available copies of the Koran. Further, the court ordered that prisoners be allowed to receive the publication Muhammad Speaks unless it could be clearly demonstrated that a specific issue would substantially disrupt prison discipline.

In Walker v. Blackwell,106 although the district court held that issues of Muhammad Speaks were inflammatory, the Fifth Circuit Court of Appeals reached a conclusion similar to Northern and reversed the district court. The basis of its decision is found in the following:

First, taken as a whole, the newspapers are filled with news and editorial comment, a substantial portion of which generally encourages the Black Muslim to improve his material and spiritual condition of life by labor and study. Nowhere, including the supposedly inflammatory portions described by the court below, does there appear any direct incitement to the Black Muslims to engage in any physical violence.

This court thus concluded that Muhammad Speaks was not inflammatory and ordered that Black Muslims be allowed to receive the newspaper. The court qualified this, however, by saying that they were not holding that exclusion of the newspaper could not take place, if it became inflammatory. The order was merely to direct that the warden not arbitrarily deny Black Muslims the right to read Muhammad Speaks.107

While Northern and Walker held that, taken as a whole, the Muslim publications presented no threat to prison security, other courts have come to the opposite conclusion. In Knuckles v. Prasse,108 the district court found that it was not mandatory that prison officials make available Muslim books and periodicals. The court held that, without proper guidance and interpretation by trained Muslim ministers, these materials might be misinterpreted by a prisoner. An uninformed prisoner could read the material as an encouragement to defy prison authorities. Thus, the literature could constitute "a clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution."109

Another decision following this basic rationale is Abernathy v. Cunningham.110 In that case, a prisoner desired to obtain a copy of "Muhammad's Message to the Black Man in America" and to subscribe to Muhammad Speaks. The Fourth Circuit held that the prison's decision denying access to this literature, so far as the record disclosed, was not motivated by religious prejudice and that the particular materials in question contained recurring themes of black superiority and hatred for the white race. It was the prison authorities' opinion that such materials would be inflammatory and subversive to discipline. The court thought that it should not attempt to substitute its judgment on the nature of the publication for that of the prison authorities. For this reason, the court denied relief.

In spite of the courts' determination as to whether material is inflammatory, most courts place the burden of proving that the deprivation of constitutional rights is justified upon the prison. In Burns v. Swenson,111 prison officials were ordered to return the plaintiff's Koran. The court believed that deprivation of his holy book would interfere with his right to freely practice his religion, particularly because the prison officials had given no explanation of why this book should not be returned to the prisoner. Similarly, in Long v. Parker,112 the Third Circuit Court of Appeals placed the burden on prison authorities who wished to suppress Muhammad Speaks. The court found that the administration must show that "[t]he literature creates a clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution."113 However, it also required the Muslims to establish that it was basic religious literature essential to their belief and understanding of their religion.

In Sasnett v. Department of Corrections,114 Wisconsin state prisoners challenged several internal management procedures, emergency rules, and permanent administrative rules regulating the types and amounts of personal property they may possess while in prison. Rules regulating prisoner personal property and clothing, which included limiting the amount of personal and state-issued property a prisoner may possess, were issued. As a result, a prisoner was forced to relinquish approximately 11 religious books, including The Amplified Bible, volumes one through three of the Jamison, Fauset Brown Commentary, the Inductive Study Bible, the NIV Interliner Greek-English New Testament, and the NIV Interliner Hebrew- English Old Testament. These religious books were sent out of the prison to or with Sasnett's pastor. Because of the new rules, one prisoner was forced to dispose of several Jehovah's Witnesses pamphlets.

After holding that the prisoners had no property interest that was protected under the Due Process Clause, it granted the prisoners relief. Unlike property interests, liberty interests can arise from the Constitution. The right to "liberty" guaranteed by the Fourteenth Amendment denoted a freedom to worship God according to the dictates of one's own conscience, as well as the right to petition the courts for redress.

It is a frequent practice in various correctional institutions to require that a prisoner specify his or her religious preference upon entering the prison. The prisoner is then forbidden to alter this choice during his or her period of confinement. For the most part, such practices have been upheld by courts.

For example, in Long v. Katzenbach,116 the court sustained the classification procedure as a valid means of controlling the proselytizing that had been a source of disruption within the institution. A similar finding was handed down in Peek v. Ciccone,117 in which prison officials had refused to permit a non-Jewish prisoner to attend Jewish services. The prison allowed prisoners to attend any service connected with their specified religious affiliation. The court found that such a restriction was not unreasonable in that it did not curtail religious belief. This was especially true in light of the fact that the rabbi in the institution had a policy of refusing conversion of prisoners to the Jewish faith. The court found that religious practices, as distinguished from religious beliefs, may properly be the subject of administrative control.

Although the issue is not entirely clear, religious classification would appear to be supportable as long as equal treatment is afforded to all religious groups and there is a rational basis for such classification.

Both Brown v. Wainwright118 and Brooks v. Wainwright119 held that regulations requiring shaves and haircuts were proper and were not a source of religious discrimination. However, the court in People ex rel. Rockey v. Krueger120 heard evidence from the prisoner that he was being held in solitary confinement because he had refused to shave his beard. The prison administration justified the regulation as one for the protection of health. The jail supervisor also testified that there was no formal regulation about hair but that the order to the staff was that prisoners were only permitted to wear neatly trimmed mustaches. He said that an orthodox Jew would not be required to shave his beard. The court held that, on the basis of the treatment afforded orthodox Jews, the prisoner was the subject of religious discrimination.

In cases concerning prison haircut regulations as applied to Native Americans, at least three courts have held that where a long hairstyle is motivated by indisputably sincere religious beliefs, then such regulations impermissibly infringe on the prisoner's right under the First Amendment to the free exercise of his religion.121 However, in Proffitt v. Ciccone,122 the court upheld prison haircut regulations, despite the prisoner's contention that he was thereby forced to violate religious vows he had taken. In this area, in order to restrict prisoner conduct based upon religious motivations, prison authorities face a heavy burden.

In Cleveland v. Garner,123 a prisoner alleged that the prison's grooming regulations interfered with the free exercise of his Rastafari religion in violation of the First Amendment.124 Based on the Biblical vow of the Nazarite, Rastafari practices include never cutting or combing one's hair, instead allowing it to grow in dreadlocks.125 Diametrically opposed to that tenet of the Rastafari religion is the aspect of the prison grooming regulations that prohibits long hair and beards. The rule is well established that prisoners retain their First Amendment right to the free exercise of religion.126 The right, however, is subject to reasonable restrictions and limitations necessitated by penological goals.127 It was conceded that, as a general proposition, the prisoner's religious practices conflicted with penological interests, such as prison security and ease of prisoner identification. However, it was contended that an exception should be made on the basis that confinement in administrative segregation and segregation from the general prison population so significantly reduces the importance of these penological interests that they serve no valid purpose. The prisoner had no desire to return to the general prison population and, in his unique confinement situation, being forced to comply with the grooming regulations both interfered with his religious beliefs and served no actual penological interests.

The court held that, as a general principle, prison grooming regulations, including specifically the requirement that a prisoner cut his hair and beard, are rationally related to the achievement of valid penological goals, such as security and prisoner identification.128 Consequently, the prisoner's First Amendment claim was denied.

The Supreme Court finally addressed the issue of beards grown for religious reasons in Holt v. Hobbs.129 The Arkansas Department of Corrections' grooming policy stated that "no inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip."130 Holt was a devout Muslim who wished to grow a half-inch beard on religious grounds;131 prison officials denied his request, arguing that beards compromised prison safety because (1) they could be used to conceal contraband and (2) an inmate could shave his beard to disguise his identity. The Court rejected these arguments and ruled in favor of the inmate:

While the [prison officials] have a compelling interest in regulating contraband, its argument that this interest is compromised by allowing an inmate to grow a -inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head.

Congress passed The Religious Freedom Restoration Act (RFRA) in direct response to the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith.133 In Smith, the Supreme Court upheld a free exercise challenge to Native American Church members who objected to a state law of general applicability criminalizing the use of peyote. The case involved members of the church who lost their jobs because of using peyote in their church services. The Smith Court declined to apply the balancing test of Sherbert v. Verner,134 which mandated the "compelling government interest" standard in religious practices cases and applied a lower standard. Congress reacted by "overruling" the Supreme Court and required courts to use the "compelling government interest" standard that was rejected by Smith.

However, the legislative history of the RFRA indicated that the required test had to be construed in the prison context, giving due deference to the expert judgment of prison administrators. The legislative history of RFRA also indicated that, while Congress intended for the same compelling interest test in the statute to apply to prisoners as well as nonprisoners, the outcome of the analysis would depend upon the context.

Many cases wrestled with religious practices under the RFRA and its application to prisons. However, in 1997, the Supreme Court held in City of Boerne v. Flores,135 that the RFRA was not a proper exercise of Congress's power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance. According to Boerne, the RFRA attempted a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its restrictions applied to every government agency and official and to all statutory or other laws, whether adopted before or after its enactment. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. However, Boerne was limited to the impact of the RFRA on state systems and had no effect on the federal system. As a result, there were two standards by which to measure judicial review of prison religious practices: one for federal prisons and one for state and local prisons and jails.

This impossible situation was finally resolved by Congress in 2000, with the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA).136 Congress enacted the RLUIPA in response to the Supreme Court's holding in City of Boerne v. Flores. The statute provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... 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 furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Under the RLUIPA, once a prisoner produces prima facie evidence to support a free exercise violation, the prisoner bears the burden of persuasion on whether the regulation substantially burdens his exercise of religion, and the state then bears the burden of persuasion on all other elements.137 This shifting of the burden of proof makes it easier for district courts to dismiss frivolous claims while placing the burden of proof on the state in legitimate claims.

By its terms, the RLUIPA is to be construed to broadly favor protection of religious exercise.138 The statute defines religious exercise as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."139 This reflects an extension of the definition provided for in the statute, which defines exercise of religion as "the exercise of religion under the First Amendment to the Constitution."140 The Act does not elevate accommodation of religious observances over an institution's need to maintain order and safety. An accommodation is necessary so that it does not override other significant interests. Congress was mindful of the importance of discipline, order, safety, and security in penal institutions. The Court expected that lower courts would apply the Act's standard with due deference to prison administrators' experience and expertise. Further, the RLUIPA does not differentiate among bona fide faiths. It confers no privileged status on any particular religious sect.

The constitutionality of the RLUIPA came up for Supreme Court rev