Your freedom of religion is protected by the First and Fourteenth Amendments of the U.S. Constitution and several federal statutes. There are five ways you can challenge a restriction on your religious freedom: the Free Exercise Clause, the Establishment Clause, the Fourteenth Amendment, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). They are each discussed below.
1. Free Exercise Clause
The first way to challenge violations of your right to religious activity is through the Free Exercise Clause of the First Amendment.
The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The second half of that sentence is known as the Free Exercise Clause, and it protects your right to practice your religion.
To make a free exercise claim you must be able to show the court that your belief is both religious and sincere. Different courts have different definitions of “religion,” but they generally agree that your beliefs do not have to be associated with a traditional or even an established religion to be “religious.” Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir. 1981); Love v. Reed, 216 F.3d 682 (8th Cir. 2000). It is important to understand how “religion” is defined in your District or Circuit before bringing your case.
Courts judge your religious “sincerity” by looking at how well you know the teachings of your religion and how closely you follow your religion’s rules. However, you don’t have to follow every single rule of your religion. And your belief doesn’t have to be the same as everyone else’s in your religion. LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991). Courts will usually listen to what a prison chaplain or clergyperson says about your religious sincerity. Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997).
If a court determines that your belief is both religious and sincere, it will next apply the Turner test. This means that the court will balance your constitutional right to practice your religion against the prison’s interests in order, security, and efficiency. Prison officials cannot prohibit you from practicing your religion without a reason. To win, you will have to show that a restriction is not “reasonably related to a penological interest,” under the Turner test described in Section A. Courts often follow the decisions of prison officials, but any restriction on the free exercise of religion is still required to meet the four-part Turner test before it will be upheld. In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Court applied the Turner test, and allowed a prison to limit worship services to specific days, because prisoners were still offered other means of practicing their religion.
2. Establishment Clause
The first half of the First Amendment sentence quoted above is called the Establishment Clause, and it means that the government can’t encourage people to be religious, or choose one religion over another. Different Circuit Courts currently rely on two different standards in deciding whether a prison action or rule that endorses or supports a particular religion violates the constitution.
RULE #2: The prison rule or practice is OK if it is does not force you to support or participate in a religion.
Under both standards, you must first show that the prison or its officials acted in a way that endorsed, supported, or affiliated themselves in some way with a religion. The first test was developed in Lemon v. Kurtzman, 403 U.S. 602 (1971). This test says that, to be valid under the Constitution, a regulation or action 1) must be designed for a purpose that is not religious; 2) cannot have a main effect of advancing or setting back any religion; and 3) cannot encourage excessive government entanglement with religion.
The second test, developed in Lee v. Weisman, 505 U.S. 577 (1992), can be stated more simply: it prohibits the government from forcing you to support or participate in any religion.
If you think you may have an establishment clause claim, the first thing you should do is research in your law library which test your Circuit follows, and read a few cases applying that test.
- Note: It is very rare to win an Establishment Clause case in prison, so you should probably try one or more of the other four options in this section along with it.
1) The Free Exercise Clause of the First Amendment protects your right to follow the practices of your religion, like eating kosher food, covering your hair, or praying at a certain time;
2) The Establishment Clause of the First Amendment keeps the government from encouraging you to follow a certain religion, or be religious;
3) The Fourteenth Amendment means that the government can’t discriminate against you or treat you poorly because of your religion;
4) The Religious Freedom Restoration Act provides added protection for prisoners in federal custody; and
5) The Religious Land Use and Institutionalized Persons Act provides additional protection for all prisoners.
For each type of challenge, a court will balance your constitutional rights against the prisons’ interest in security and administration.
3. Fourteenth Amendment Protection of Religion
Another source of protection for religious practice is the Fourteenth Amendment. It provides all individuals, including prisoners, with “equal protection under the law.” This means that a prison cannot make special rules or give special benefits to members of only one religion or group of religions without a reason. We talk about the legal standard to show discrimination in detail in Section C. You should read that section carefully if you think you might have a religious discrimination claim.
The prison can treat members of one religion differently if it has a reason that isn’t about the religion. Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990). For example, it is OK for a prison to provide better facilities and services to a religion with more followers. Cruz v. Beto, 405 U.S. 319 (1972).
4. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA)
In addition to the protections provided by the Constitution, there are two federal statutes that protect the religious rights of prisoners: The Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Both RFRA and RLUIPA provide prisoners with more protection of religious freedom than the First Amendment. Specifically, the RFRA states that the government can only “substantially burden a person’s exercise of religion” if two conditions are met. First, the government restriction must be “in furtherance of a compelling governmental interest.” Second, the government must prove that its restriction is the “least restrictive means of furthering that compelling interest.”
This is a much stricter test than the Turner standard. However, the Supreme Court struck down the RFRA as it applies to state prisoners in a 1997 case, City of Boerne v. Flores, 521 U.S. 507 (1997). This means that you cannot use the RFRA if you are a state prisoner.
The Supreme Court did not overrule the RFRA as it applies to the federal government, and most courts have held it is still valid as to federal agencies like the Federal Bureau of Prisons. If you are a federal prisoner and you think your right to practice your religion has been violated, you can write a separate claim in your complaint under the Religious Freedom
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to deal with the fact that State prisoners could no longer use the RFRA. The standard is the same. If a prison cannot show that their rule passes both parts of this test, a court will find that they have violated the RLUIPA.
The RLUIPA is different than the RFRA only in that it applies only to programs or activities that receive money from the federal government. This financial assistance gives Congress the right to pass laws that it might not otherwise be able to pass. In 2005, the U.S. Supreme Court found RLUIPA constitutional in Cutter v. Wilkinson, 544 U.S. 709 (2005). The Court held that facilities that accept federal funds cannot deny prisoners the necessary accommodations to engage in activities for the practice of their own religious beliefs.
All state correctional systems accept federal funding, so it is a good idea to bring a claim under RLUIPA if you believe that your right to exercise your religion has been unfairly restricted.
5. Cases and Issues
The following are brief descriptions of the types of problems that often come up in cases about prisoners’ right to religious freedom.
- Religious services and meetings with clergy: You have the right to meet with a religious leader and to attend religious services of your faith. You may meet with a clergy person of a particular faith even if you weren’t a member of that faith before entering prison. However, courts have allowed prisons to restrict your rights based on the prison’s interests in order, security, and efficiency. The bottom line is that while you are not entitled to unlimited meetings, you have a right to a “reasonable opportunity” to attend services or meet with a religious leader. The prison gets to decide what a “reasonable opportunity” means. For example, courts have allowed work requirements that prevent prisoners from attending some weekly services of their faith if it does not deprive a prisoner of all means of expressing their faith, O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). Most courts have upheld denial of access to sweat lodges for religious practice, Thomas v. Gunter, 103 F.3d 700 (8th Cir. 1997). The prison can also require that all religious services be led by a non-prisoner religious leader, Anderson v. Angelone, 123 F.3d 1197 (9th Cir. 1997).
- Personal grooming, hygiene, and headgear: Courts have taken different approaches to prisoners who maintain certain hairstyles or facial hair or wear headgear. Prisons can only keep you from doing this if they have a good reason based on security or hygiene, Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990). That said, courts often agree with whatever the prison says is a “good reason.” Young v. Lane, 922 F.2d 370 (7th Cir. 1991). However, if there is an alternative way to maintain those security concerns, some courts have found that the regulation might infringe on the inmate’s religious practice. Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990); Smith v. Ozmint, 578 F.3d 246 (4th Cir. 2009).
- Special diets: Special religious diets often raise issues of cost, and sometimes also raise questions related to the Establishment Clause, which prohibits endorsement of one religion above others. Courts have often required prisons to accommodate prisoners’ religious diets, but usually allow them to do so in a way that is least costly or difficult for them. Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997); Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002); Makin v. Colorado Dept. of Corrections, 183 F.3d 1205 (10th Cir. 1999). If there is an alternative way for a prisoner to exercise his dietary beliefs, like by choosing vegetarian options, courts will usually not find a violation. Williams v. Morton, 343 F.3d 212 (3d Cir. 2003).
- Name Changes: Prisoners who convert in prison may want to change their name. Prisoners have a First Amendment right to change their names for religious reasons, but prisons may require them to use both their old and new names. In Hakim v. Hicks, 223 F.3d 1244 (11th Cir. 2000), for example, a court decided that a prisoner’s rights had not been violated when his religious name was placed on the back of his identification card. Other cases like this are Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990) and Imam Ali Abdullah v. Cannery, 634 F.2d 339 (6th Cir. 1980). The procedure for getting a name change is usually controlled by state law, rather than the Constitution. More information about name changes is available at page 59 of this Chapter, in Section I, on the rights of Transgender prisoners.
Courts have addressed many other issues related to religion. In Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999), a court held that the prison could ban a piece of religious mail because it had the potential to produce violence by advocating racial or religious hatred. In Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), the court decided that a law requiring DNA sampling did not violate a prisoner’s religious rights because it applied to all prisoners. The right to possess religious objects is discussed in Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001).