by Cassie Pierson, Attorney
The Free Exercise Clause of the First Amendment of the U.S. Constitution prohibits the government from discriminating against religious beliefs or placing restrictions or penalties on religious practices. In the prison setting, restrictions on religious practices will be upheld as valid regulations if they are ?reasonably related to the legitimate penological interests? of the prison. This is known as the Turner ?reasonableness? test. (See, Turner v. Safley, 482 U.S. 78 (1987)). However, Turner does not apply to all prisoner claims of violations of religious freedom or freedom of speech. More stringent tests are applied when a prisoner challenges state prison regulations under the Religious Land Use and Institutionalized Persons Act (RLUIPA) or federal prison regulations under the Religious Freedom Restoration Act (RFRA).
Restrictions on religious rituals, services and ceremonies, holiday observances, religious literature, religious objects and accessories, grooming and attire, and religious diets can be challenged under the Free Exercise Clause and/or the RLUIPA/RFRA. For example, prisoners demanding adjustments of their work schedules so that they could observe the Sabbath have generally been successful in challenging the restrictions. (See, Conyers v. Abitz, 416 F.3d 580 (7th Cir. 2005)) Also, prisoners have successfully challenged restrictions on the purchase and possession of religious texts even when those books were about ?unfamiliar? or unpopular views such as Wicca and atheism (See, Kaufman v. Schneiter, * F.Supp.2d_, 2007 WL 521218 (W.D. Wis. Feb. 15 2007) (see, also O?Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003)). In order to restrict religious books, prison officials must show that the books advocate violence and threaten the security of the institution. With regards to religious diets, a Muslim prisoner settled his case against the Virginia Department of Corrections in 2007. In that case the court held that the prison must provide the prisoner with ?food items containing 2,200 calories? daily during Ramadan. (See, Couch v. Jabe, USDC W.D. Va., Case No. 7:05-cv-00642-PMS (Sept. 22, 2006))
The Establishment Clause of the First Amendment can be violated
when a government policy or practice: (1) has no secular purpose; (2) the primary effect is to advance or inhibit religion; or, (3) fosters an entanglement in religion. In other words, requiring a prisoner to participate in a religious-based or faith-based program so that his/her classification status is lowered or as a parole eligibility requirement, violates the Establishment Clause of the First Amendment.
In California, there are several sections of Title 15 that address religious issues; see sections 3053 (food for religious events), 3054 (religious diet program), 3054.1 (religious vegetarian diet), 3054.2 (Jewish Kosher diet), 3210 (establishment of religious programs), 3211 (inmate ministers), 3212 (scheduled services), and 3213 (stipulations regarding religious artifacts, sanctuaries, and sacramental wine).
1. 42 U.S.C. section 2000cc, et seq.
2. 42 U.S.C. section 2000bb, et seq.