Religion, Prisons, and the Irony of the Law
posted by Nate Oman
From time to time, my practice involves work for religious institutions and other parties dealing with issues involving the legal regulation of religion. Hence, I have done a bit of litigation involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). It recently occurred to me that this law creates a neat little legal paradox: It is entirely possible that you could be sent to prison for engaging in some activity only to find that “on the inside” you had a legal right to engage in precisely the activity that put you there in the first place!
RLUIPA is the second round in Congress’s response to the Supreme Court’s decision in Employment Div. v. Smith. In Smith, the Court held in an opinion by Justice Scalia that religious conduct (in this case the use of the hallucinogen peyote as part of the sacrament of the Native American Church) that was forbidden by a neutral law of general applicability was not entitled to constitutional protection under the Free Exercise Clause. In other words, the government could not pass a law that said, “The use of Peyote as part of a religious sacrament is forbidden,” but it could pass a law that said, “The use of Peyote is forbidden.” So long as religion is not singled out, the Free Exercise Clause, so said the Court, has nothing to say.
Congress reacted to the decision by passing the Religious Freedom Restoration Act, which stated that any state action that placed a substantial burden on religious exercise must pass the compelling state interest test. In other words, rather than looking to whether the law is neutral, we should look to whether the law is burdensome. In City of Boerne v. Flores the Court held that RFRA exceeded congressional power and struck the law down. Congress responded by passing a narrower statute, RLUIPA, that applied only in the context of prisons and land use planning.
So here is the scenario:
Imagine that you are a member of the Native American Church, and you are prosecuted for using peyote as part of your religious ceremonies. You are tried in state court and at trial you raise the Free Exercise Clause as a defense. “No dice,” says the Judge, “Smith put that claim to rest. The law is generally applicable and it is off to prison with you.”
Once in prison, you find (not surprisingly) that you still cannot use peyote as part of your religious ceremonies. Its use is forbidden — along with a lot of other drugs — by state laws governing inmates. At this point, you file a law suit, arguing that the prison’s prohibition on peyote violates RLUIPA.
The Judge says, “Didn’t I just see you? We’ve been through this. Smith says that you have no right to smoke peyote.”
To which you reply, “Not so fast your Honor. Smith merely states that as a matter of federal constitutional law I have no right to smoke peyote. Congress, however, has passed a special law that applies in the prison context. Under RLUIPA any law that burdens my religious practice while I am in prison must be subject to strict scrutiny. In other words, before the guards can take my peyote away they must show that the law serves a compelling state interest in the least restrictive means possible.”
The Judge scratches his head for a moment and says, “Your right. Furthermore, while under ordinary rational basis scrutiny I think that the general peyote law that you were prosecuted under passes scrutiny, I don’t think that peyote prohibitions can pass strict scrutiny. You get your hallucinogenic sacrament.”
To which you reply, “Thank you your Honor. I also think that my due process rights are being violated because the prison is blocking the porn channels on my cable service.”
“Nice try,” says the Judge, “but no.”
You then return to your cell were you happily use peyote each Sunday for the rest of your sentence. Some years later you are released. You walk outside the prison gates, go to the local Native American Church and use peyote. The DEA breaks in in the middle of the service and arrests you.
“Hey!” you shout, “I went to court and I have a legal right to use peyote!”
To which the DEA agent replies, with a wicked grin, “True enough. But you only have a legal right to use peyote when you are in prison. RLUIPA only applies outside of the prisons in the context of land-use regulations. Not to worry, however, as soon as we get you booked, tried, and sentenced for peyote use, you’ll be back inside where you will have a legal right to use the substance as part of your religious rituals. And with repeat-offender laws, you’ll have an even longer sentence this time…”
Such are the ironies of the law.