Introduction

Prison administrators’ jobs have become more complex since RFRA was first enacted in 1993, with the advent of international terror and increasingly violent gangs. Both phenomena have roots in religion, and, therefore, extreme religious liberty has hit the federal and state prison systems hard.

religious_freedom_prisonThe fanatical Muslim terrorist networks within United States borders before September 11, 2001, were an undetected cancer spreading through the system. But they were hard at work: a bomb exploded in the World Trade Center basement in 1993. Our own prisons – and the military – have been potential breeding grounds for them. It took the annihilation of almost 3,000 victims from abroad and the U.S., and the World Trade Center – two of the tallest buildings in the world – for Americans to realize that there was a religious movement intent on their destruction.

In the aftermath of September 11, it quickly became apparent that Muslim chaplains in the prisons and the military were in a strategic position to recruit, train, and indoctrinate those individuals who were open or vulnerable to an approach. Like pedophiles, terrorists seek out individuals who are vulnerable to their overtures – those who are isolated from family and friends – and then they play on their insecurities.

The same is true for extremist gangs. John Pistole, the former head of the FBI’s counterterrorism division in 2003, and now the Administrator of the Transportation Security Administration, summarized the problem in the prisons:

Inmates are often ostracized, abandoned by, or isolated from their family and friends, leaving them susceptible to recruitment. Membership in the various radical groups offers inmates protection, positions of influence and a network they can correspond with both inside and outside of prison.

Paradoxically, inmates gravitate to gangs and terrorist cells for safety and a sense of belonging. The fact is that violent religious extremists in prisons have been a problem for ages, and this is just a new iteration. We were not paying close attention to the Islamic terrorists before they struck on September 11. The country as a whole, however, was becoming increasingly aware of the existence of white supremacists preaching hatred and violence, for example, the Aryan Brotherhood, Ku Klux Klan, World Church of the Creator, Arizona Aryan Brotherhood, Aryan Circle, and Aryan Brotherhood of Texas, among others. The two movements – violent gangs and terrorist cells – are archetypes for chaos and criminal activity in arenas where security and order is paramount.

For legal purposes, the problem with these groups is not what they believe, as distasteful as that may be. As in every other venue in the United States, they have every right to believe whatever they choose.
Rather, conduct is the trigger for the law to enter the picture. The challenge for prison authorities and the larger society from white supremacists or fanatical Muslims is that their beliefs lead them to take illegal action – whether advocating the violent overthrow of the government or taking concrete steps to that end. Often, their beliefs or membership in violent societies is proof of likelihood of illegal action. Whether Muslim extremists or white supremacists are involved, the potential for violence is not hypothetical. Excerpted from God vs. The Gavel: The Perils of Extreme Religious Liberty

The Challenge of Accommodating Religious Prisoners

Diet restrictions

Diet Accommodation Request

Religion

• Vegan African Hebrew Israelite
• Vegetarian diet Buddhist
• Protein tablets Buddhist
• Vegetarian diet Jehovah’s Witness (not required for most)
• Vegetarian (no meat/eggs) Hindu
• Kosher diet* Orthodox Jew
• Diet – no pork; halal meat only Muslim
• No pork or shellfish Seventh-day Adventist
• Dairy vegetarian most of year; fast of milk and water Ethiopian Orthodox Tewahido Church
• I-tal diet Rastafarian
• Biblically derived diet§ Nation of Islam
• Fish and unleavened bread during Lent Catholic
• Steak and sherry every Friday CONS (Church of the New Song)
Grooming/Dress

Grooming/Dress Accommodation Request

Religion

• No haircut Hindu, Native America
• No haircut; beard Sikh
• Beard Muslim
• Muslim cellmate Muslim
• Muslim head covering in prison yard (already allowed in prayer services) Muslim
• Dreadlocks and hat Rastafarian
• Beard longer than allowed Rastafarian
• Headband Native American
• Metal cross Protestant
• Religious medal Odinis
• Bow ties during religious service Nation of Islam
• Tallow-free soap and conditioner Buddhist
• Sidelocks Orthodox Hasidic Jew
• Worship in the nude Technicians of the Sacred (Neo-African faith)
Literature

Literature Accommodation Request

Religion

• Racist literature Christian Identity, Church of the Creater
• Noncensored religious texts Hebrew Israelite Faith
• Texts Taoism
• Religious materials Moorish Science Temple of America
• Access to banned literature Asatru, Church of Jesus Christ Christian, Wiccan, Satanist, Nation of Islam
• Scripture – NPKA Book of Blotar Odinist
• Racist literature, redacted Hebrew Israelite
• Satanic Bible Satanist
• Aryan Nation literature Aryan Nation
• Religious comic books Fundamentalist Christian
• Literature and numerological devices Nation of Gods and Earths, or Five Percent Nation (roots in Black Islam)
• Bible – specific version Variety of Christian denominations
Miscellaneous

Miscellaneous Accommodation Request

Religion

• Evergreen tree, sauna, charm necklace with Thor’s hammer, small stone altar in cell, cauldron, drinking horn, branch, Viking-type swords made of soft wood Odinist
• Sweat lodge* Native American
• Wild-bird feathers Native American
• Permission to cast spells/curses Wiccan
• Tarot cards Wiccan
• Proper disposal of blood after drawn for medical testing Jehovah’s Witness (fundamentalist)
• Refusal to take tuberculosis test Rastafarian, Muslim
• Placement only with Caucasians Christian Separatist Church Society
• Worship separate from Sunni Muslims Shi’ite Muslims
• Worship separate from Shi’ites Sunni Muslims
• Muslim cellmate Muslim
• Right not to be classified as a Security Threat Group, which designates violent prisons gangs Five Percent Nation
• Medicine pouch Native American Church
• Spiritual necklace Native American Church
• Weekly Jumu’ah prayer Muslim
• Prayer oil (in or outside cell) Muslim
• Candles, incense Muslim
• Religious talismans Muslim
• Bible burning Luciferian
• Writing paper, newspaper, more access to spiritual adviser Wotanist
• Menorah for Hanukah Jew
• Tefillin* Orthodox Jew
• Not filling out standard form to obtain kosher meal Orthodox Jew
• Wine for communion Catholic
• Personal counseling, worship service, Bible study, ministers Pentecostal
• Prayer rug Muslim
• Spiritual adviser, well-rounded research library in cell, Bible in yard for proselytization Fundamentalist Christian Separatist
• Denominational pin, shirt, separate services Christian Identity Church
• Cleric from outside prison to conduct services Muslim
• Weekly group meetings Atheist
• Oils, powders, incense, candles, religious Botanicals, stones, Talisman, Charm bags Voodoo/Egyptian Freemasonry
• Better Protestant programming Baptist
• Observance of Muslim holidays not recognized by Sunni/Shi’ites Nation of Islam
• Embrace and kiss wife Christian
• Change of name after being born again Universal Life Church
• Kirpan (knife) Sikh

The above are some of the requested accommodations in state and federal prisons to give you a sense of the scope of the issue. It is far from inclusive.

Holt v. Hobbs (2014 Term)

Lower Court Opinion: 8th Circuit (View PDF)
Argument: October 7, 2014
Opinion: January 20, 2015 (View PDF)
Vote: 9-0, authored by Alito
Plaintiff Holt is represented by Professor Douglas Laycock of the University of Virginia School of Law and The Becket Fund for Religious Liberty.

Issue: A 2015 development in religion and prison accommodations comes from the Supreme Court case, Holt v. Hobbs, in which a Muslim inmate (Holt AKA Abdul Muhammad) in an Arkansas prison is arguing for the right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to have a beard in violation of the prison’s rules. RLUIPA is the federal law that imposes on local and state governments the same standard as that imposed by the Religious Freedom Restoration Act (RFRA) federal law, and which was at issue in Burwell v. Hobby Lobby. To wit, a prison may not substantially burden an inmate’s free exercise of religion unless serving a compelling interest in the least restrictive means. The standard is one that was never applied to prisons before RFRA and RLUIPA appeared on the horizon in 1993 and 2000 respectively.

Currently, the Arkansas prison officials in this case permit ¼-inch beards for medical reasons (which likely means they must also for religious reasons under the First Amendment), but they have objected to Holt’s demands for a longer beard. The advocates for extreme religious liberty have heaped condescension on the prison authorities for their concerns. It’s just a ¼ inch, right?

Holding: The Arkansas prison policy that prevents a Muslim prisoner from growing a half-inch beard in accordance with his religious beliefs violates the RLUIPA.

Prison Related Religious Freedom News

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Alex J. Luchenitser, A Unanimous Church-State Decision from the Supreme Court?, American Constitution Society for Law and Policy

When groups normally at odds united on religion — watch out. Witness RFRA

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Professor Marci A. Hamilton, The Oral Argument in Holt v. Hobbs: What Does “Due Deference” Mean in the Context of RLUIPA’s Super Strict Scrutiny?, Hamilton and Griffin on Rights

 The oral argument in the Holt v. Hobbs case at the Supreme Court, which I previewed here, followed the expected faultlines. On the one hand, the legislative history and the Supreme Court’s decision in Cutter v. Wilkinson require courts to defer to prison administrators’ assessments of safety and security. On the other hand, the Religious Land Use and Institutionalized Persons Act (RLUIPA), by its […]

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Professor Marci A. Hamilton, Supreme Court Preview of Holt v. Hobbs, Justia.com

Next week, the Supreme Court will hear argument in the case of Holt v. Hobbs, in which a Muslim inmate in an Arkansas prison is arguing for the right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to have a beard in violation of the prison’s rules. RLUIPA is the federal law that imposes […]

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