Elyse Slabaugh received a JD in 2024 from the J. Reuben Clark Law School, Brigham Young University. This post is based on an article published in the BYU Law Review.
Incarceration by its nature denies a prisoner participation in the larger human community. To deny the opportunity to affirm membership in a spiritual community, however, may extinguish an inmate’s last source of hope for dignity and redemption.[1]
The difficulties of prison administration create the potential for prisons to succumb to neglect, racism, and religious intolerance and for prison officials to curtail inmates’ rights not only when necessary, but also when merely convenient.[2]
Background
Free exercise of religion often presents a complicated reality in the prison context. In the United States, courts have rejected the once-held view that prisoners are “slaves of the State”[3] to whom the Bill of Rights does not apply; but still, it is acknowledged that “incarceration brings about the necessary withdrawal or limitation of many privileges and rights.”[4] Yet freedom of religion has been categorized as a “fundamental” or even “preferred” freedom guaranteed by the Constitution.[5] As noted by Justice William J. Brennan above, freedom of religion is fundamentally related to human dignity. Although prisoners are by necessity denied many basic constitutional rights, to deny them religious expression and community as well is to deny them an important part of what it means to be human.
Even so, the argument goes, the state has compelling penological objectives—such as security, safety, deterrence of crime, budgetary concerns, and orderly administration—that often come into direct conflict with an inmate’s right to free exercise of religion. In the United States, the ability and willingness of prison administrators to accommodate religion in prisons has fluctuated over the years. Even the briefest glimpse at the history of U.S. jurisprudence in this area reveals that the standard of scrutiny for free exercise claims has been not only easily alterable but also unclear and inconsistent in its application.
Conflicting Standards of Review
Several recent federal laws have significantly improved the state of religious freedom in U.S. prisons; these include the Religious Freedom Restoration Act (RFRA, 1993) and the Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000). Both laws prohibit regulation that substantially burdens religious exercise unless the government can show that the regulation is the least restrictive means to serve a compelling government interest. RLUIPA applies specifically to persons living in or confined to a government institution and, unlike RFRA, applies to U.S. state-government action. But the unique nature of the prison context, the variety of free exercise issues that can arise there, and an extensive history of overlapping and conflicting legal standards has led to confusion, even today, among U.S. courts as to how exactly those standards should be applied in practice.
This inconsistency is due in large part to two U.S. Supreme Court decisions. The first, Cutter v. Wilkinson (2005), upheld RLUIPA as constitutional but also suggested a “due deference” approach to government action that lower courts latched onto.[6] The second, Holt v. Hobbs, decided ten years later, scrutinized government action more closely but did nothing to strike down or clarify Cutter’s deferential language.[7] In the aftermath of Holt, most lower courts have followed its “hard look” approach; however, given that Cutter has not been overruled or discounted by subsequent decisions, due deference remains a viable avenue for courts to use when they so choose. Thus, although the theory of strict scrutiny was well established through RLUIPA, in practice, some remnants of a deferential approach remain among lower courts.
Yet “since strict scrutiny and deference to the government are in a sense opposites, there [is] incoherence in the very notion of strict scrutiny with deference.”[8] It is important to adhere to true strict scrutiny (as opposed to a strict scrutiny with deference) because when religious freedom is neglected in prisons, religious minorities often suffer the most. Taking a true hard look approach to strict scrutiny, as the Court did in Holt, is not only necessary to protect the rights of religious minorities but is also both practical and feasible, even in the prison context.
A “Hard Look” at Government Restrictions: Ramirez v. Collier
A 2022 U.S. Supreme Court case, Ramirez v. Collier, supports this assertion.[9] In the aftermath of a failed attempt to ban clergy from the execution chamber altogether, a Texas prison instituted a policy that allowed clergy in the execution chamber but prohibited them from speaking aloud or touching inmates before their execution. That policy was soon challenged by Ramirez, an inmate facing execution who wanted his Christian pastor to lay hands on him and pray audibly over him in the execution chamber. To justify the ban on audible prayer, prison officials cited the following compelling penological interests: first, absolute silence is necessary in the execution chamber so that prison officials can monitor the inmate’s condition through a microphone suspended in the room; and second, prison officials must prevent disruptions and maintain solemnity and decorum in the execution chamber—something that might be jeopardized if the pastor were to make a statement to the witnesses or officials present. To justify the ban on religious touch, prison officials argued the necessity of maintaining security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim’s family.
Although the Court recognized all of the prison’s proffered reasons as compelling and important state interests, the Court ultimately held that Ramirez was likely to prevail on the merits of his RLUIPA claim. The Court’s reasoning in Ramirez demonstrated a true hard look approach to strict scrutiny. Primarily because Texas had previously allowed audible prayer and touch in the execution room, the Court stated that prison officials had not sufficiently demonstrated that departing from that precedent was now necessary to further compelling state interests. Neither had they demonstrated that a categorical ban was the least restrictive means to protect their interest in preventing disruptions, maintaining safety and security during the procedure, or monitoring the inmate’s condition. In fact, the Court proposed several other measures that could be implemented to adequately address the prison’s concerns while still allowing the inmate to exercise his religion, such as limiting the volume of any audible prayers, requiring silence during critical points in the execution process, or subjecting clergy to immediate removal for failing to comply with any imposed rules. The Court noted that prison officials had offered only conclusory statements and had asked the Court to “simply defer to their determination,” but that “is not enough under RLUIPA.”[10]
Ramirez demonstrates that a hard look approach to strict scrutiny can protect the religious freedom of inmates without compromising compelling penological interests such as security, safety, or order. Even in a highly sensitive and unpredictable environment like the execution chamber—where prison officials have an extremely compelling interest in maintaining order, safety, and security—careful scrutiny is feasible. Such an approach holds prison officials to a higher degree of accountability, ensuring that when a prison policy or regulation exists that burdens an inmate’s religious freedom, it truly is a necessary and unavoidable intrusion on the inmate’s rights. This ultimately benefits individuals of all religious denominations, but particularly religious minorities, who have experienced a history of religious discrimination and unequal treatment in prison and who still face significant and disproportionate burdens on their free exercise today.
Benefits of Strict Scrutiny—to Prisoners and to the State
Although a strict scrutiny approach may seem at odds with the interests of prison officials, this is not entirely true. The rationales behind many of the regulations that limit inmates’ religious freedom are prison administrators’ interest in maintaining security, safety, and order in prisons. But another consideration for prison administrators is the effect that providing equal treatment can have on those compelling penological interests. As one scholar has noted, “Creating conditions of fair treatment and equal opportunities is paramount in prisons, not just to bring [prison officials] in line with equality legislation, but also as a safeguarding priority for the offenders themselves. . . . Perceptions of fairness have demonstrable effects on order and well-being.”[11] Further, by providing religious accommodations and ensuring equal treatment of minorities, prison officials are more likely to avoid time consuming and costly litigation.
It appears, therefore, that equal treatment and opportunities provided to inmates can contribute to greater order, better inmate wellbeing, less litigation, and increased safety and security in general. This does not mean that every request for religious accommodation must be granted, but it does mean that prison officials should carefully scrutinize their policies, considering both the effect they may have on religious exercise and the feasibility of granting religious accommodations when conflicts between compelling penological interests and an inmate’s religious practices arise. Both prison officials and courts must act in ways that “reconcile, in an honest and public way, the competing interests of the individual and the community,” when dealing with religious freedom issues that arise in the prison context.[12]
References:
[1] O’Lone v. Estate of Shabazz, 482 U.S. 342, 354, 368 (1987) (Brennan, J., dissenting).
[2] Daniel J. Solove, Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, 106 Yale L.J. 459, 463 (1996).
[3] Ruffin v. Commonwealth, 62 Va. (1 Gratt.) 790, 796 (1871).
[4] Price v. Johnston, 334 U.S. 266, 285 (1948).
[5] See, e.g., Marsh v. Alabama, 326 U.S. 501, 509 (1946); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Pierce v. La Vallee, 293 F.2d 233, 235 (2d Cir. 1961).
[6] Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005).
[7] Holt v. Hobbs, 574 U.S. 352 (2015).
[8] David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, 114 Mich. L. Rev. First Impressions 124, 126–27 (2016).
[9] Ramirez v. Collier, 142 S. Ct. 1264, 1274 (2022).
[10] Id. at 1279.
[11] Katie Hunt, Non-Religious Prisoners’ Unequal Access to Pastoral Care, 18 Int’l J. L. in Context 116, 117 (2022).
[12] Solove, supra note 2, at 490.