Recent headlines have lamented Islamic sharia control of entire prison housing blocks in Great Britain. At home, American political leaders are beginning to recognize and assess the threat of religious radicalization in prisons. It is a growing threat, in need of vigorous oversight and management. But efforts to combat this serious homeland security threat will flounder so long as well-intentioned but constitutionally unnecessary religious liberty legislation continues to be extended beyond the general public to inmates. It’s one thing to address the encroachment on religious free exercise that was rampant in the Obama years, as witnessed during its death throes. And legislation passed in the early 1990s was necessary to protect free exercise by law-abiding religious believers, as evidenced by Obamacare’s preventative care mandate that requires coverage for potentially abortion-inducing drugs. Designed as a shield against government intrusions on religious liberty, hostile inmates and their allies will use it as a sword to harass and intimidate prison chaplains, administrators and policy makers. Extending extra-constitutional protection to inmates is a recipe for trouble that will undermine correctional officials and embolden radical elements. The danger is easily remedied if Congress has the will and the courage to retract an unwarranted extension of religious liberty legislation known as RLUIPA as it applies to prison populations, and leave inmate free exercise issues to be governed by the First Amendment. Unless this modest remedy is advanced, prison radicalization will deepen and correctional authorities will soon face a crisis.
US prisons are not free to develop their own policy about religion based on First Amendment standards. As odd as it may sound, local jails and state and federal correctional institutions are bound to a higher standard than is established by the First Amendment. And the reason is that politically conservative religious liberty advocates have required it. Here, in brief, is the backstory.
In 1990 Justice Antonin Scalia authored Smith v. Oregon — his one great error. Smith held that laws of general applicability that are religiously neutral yet have an incidental impact of religious free exercise are not constitutionally suspect and are reviewed in court challenges by a low standard: is the law rationally related to some legitimate government power? If so, the incidental impact of free exercise is part of life. That is termed the “rational relationship test” — usually an easy test for government to satisfy.
In response Congress and 22 states have passed the Religious Freedom Restoration Act (RFRA). It elevates the standard in all such cases for federal government action (and state action in states where similar state laws have been adopted). That standard is that the government must show a “compelling government interest” that cannot be achieved by any alternative means that is less restrictive of religious free exercise. That is “strict scrutiny,” and is often fatal to challenged government action. That is critical, and is the reason the Hobby Lobby case defeated the Obamacare mandate for an employer with a religious objection to provide its employees with “preventative care” insurance coverage that included emergency contraception that the employer and the FDA said may be an abortifacients. Hobby Lobby was an RFRA case.
Jump ahead to the year 2000. Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). It amended RFRA and applies it to all prisoners. It thus applies “strict scrutiny” to any action that constitutes a “substantial burden” to an inmate’s practice of religion and defines religion so broadly that it includes everything from typical religious activity we are familiar with in the USA to anything an inmate sincerely professes – things such as Tarot cards, Wiccan practices, and Santeria are all protected, and so are “religions of one” in which the inmate is the only person in the world who holds a particular belief, so long as it is sincere. Of course, the law covers Judaism, Islam and Christianity. It has some good results — such as kosher meals for sincere Jewish inmates, etc. But there are problems brewing. Here is the key: RLUIPA’s strict scrutiny is not required by the Constitution. US Supreme Court case law holds that when you go to prison, part of the penalty for crime is potential restriction of religious liberty. If a prison has a “legitimate penological justification” for restricting some religious practice — say, inmates drinking communion wine or possessing a dagger for a Satanic ritual — that is enough to limit the free exercise.
Now, those examples are obvious, and would likely survive even strict scrutiny analysis. But recently, some state’s correctional systems, under the pressure of RLUIPA litigation, have recognized groups previously considered “disruptive groups” as religions – including the Nation of God on Earth, a.k.a. the 5% or Five Presenters. It is an offshoot of Nation of Islam. In another case, one state yielded to an adult inmate who converted to Islam and wanted a circumcision. Prison authorities were obliged to accommodate him and transport him to a hospital for the procedure. The standard in those cases was not the constitutional test of “reasonable penological justification” — with its deference to correctional experts to identify security and safety risks — but strict scrutiny under RLUIPA. So as a result, we may see challenges in the future that go to the heart of what may be fertile recruiting ground for radicalization — prisons — like the problem that is happening in Great Britain. This could be about any religion.
In the federal system, Muslim inmates at Terre Haute, a maximum security federal compound that holds special monitoring inmates, are allowed to participate in group prayer, which is led by one of the inmates who is elected as the leader. That includes the “American Taliban” guy.
But the Constitution and federal judges are not the ones who mandate this. Congress is. It is all about RLUIPA. And religious conservatives are its main supporters. They have championed the law in some worthwhile cases, but the broad reach of the law is dangerous. In many states, no inmate is permitted to “lead” a group religious activity, as it may give him power or influence over other inmates. But challenges are sure to come, in view of the federal prison system yielding on the issue. This is why RLUIPA is a bad idea. But the conservatives don’t think so. They point to Judge Gorsuch’s decision in Yellowbear v. Lampert. But RLUIPA opens up the breeding ground for radicalization — and not just in one religion, but also in any, although jihadis are clearly taking concerted advantage of this situation.