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.
December 9, 2005 at 1:50 pm
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Responses (13)
Mike - December 9, 2005 at 2:16 pm
That is really funny. I know quite a bit about RLUIPA and this never occured to me. What’s even funnier is that you would think we would be more tolerant of the exercise of religious freedo outside prison walls, where total power and control over someone isn’t necessary.
Nate Oman - December 9, 2005 at 2:58 pm
I should point out that the DEA agent is charging you under state anti-peyote laws. Were you charged under a federal law, you could challenge it under RFRA, which continues to apply to federal law….
Mike - December 9, 2005 at 3:18 pm
Well, if we’re getting hyper-technical here, peyote for use in religious ceremonies is exempt under federal law, so there would be no need to challenge the ban. 21 CFR 1307.31. (Plus, several states also exempt its use for religious cermonies.) If not being hyper-techinically correct in a blog post makes you nervous, you can always sub. hoasca tea for peyote.
Paul Gowder - December 9, 2005 at 3:19 pm
So the real question is: can I sell peyote to prisoners?
Daniel J. Solove - December 9, 2005 at 3:28 pm
Back in law school, a few years after RFRA was passed, I wrote a note about RFRA and its application to prisons entitled Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, 106 Yale L.J. 459 (1996). The note isn’t on SSRN, but I’ve posted a copy at my website here. I examined how RFRA purported to raise the level of constiutitional scrutiny for prisoner free exercise of religion claims from minimal to strict scrutiny. Nevertheless, cases decided under RFRA’s more protective standard still by and large came out the same way. The note explains that the reason for this was because courts continued to accord deference to the prison officials, overriding even the highest form of constitutional scrutiny. I argued that such deference was improper. I haven’t followed the developments in this area of law since City of Boerne v. Flores, as I turned my attention to issues involving information privacy law. But your post raises a very interesting question, although I wonder to what extent RLUIPA might be gutted by deference as RFRA was.
Nate Oman - December 9, 2005 at 3:50 pm
Dan: My sense is that as a practical matter your question is exactly the right one to ask. I do think that strict scrutiny in practice gets watered down in the prison context, but I don’t think it is as though RLUIPA has had no effect. Religious prisoners are still better off with RLUIPA than they are with nothing. BTW, a short time ago there was an article in the Harv. L. & Pub. Pol’y that provided a nigh on comprehensive over view of RLUIPA’s application in the prisons. (It was written by a litigator at the Becket Fund.) It expressed some of the same concerns. Nevertheless, I think it would be a bit too pessimistic to say that RLUIPA has been gutted, at least not yet.
SCOTUSblog - December 11, 2005 at 12:39 pm
Blog Round-Up – Sunday, December 11th
Here is Concurring Opinions with a post on the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA is Congress’s second response to the Supreme Court’s decision in Employment Div. v. Smith. On the lighter side, the blog also has…
LT - December 11, 2005 at 3:17 pm
The scenario outlined above is a strong signal, IMHO, that RLUIPA is a rather silly (and unnecessary) law, if not an unconstitutional one. (NB: Sorry if I didn’t find the Supreme Court’s opinion in Cutter v. Wilkinson at all convincing.)
As to the watering down of strict scrutiny, I tend to think that this happens because RLUIPA’s application in the prison context is a direct reversal of the Supreme Court’s decision in O’Lone v. Estate of Shabazz. Much like what has happened since Booker, with courts of appeals working very hard to minimize the impact of Blakely and Booker, those courts have done the same in the prison litigation context, employing a strict scrutiny standard strikingly similar to the extra-deferential rational basis standard endorsed by O’Lone and Turner v. Safely.
Nick G-B - December 12, 2005 at 12:27 pm
I wrote a paper on priest-penitent privilege back in law school, and one scenario that was involved went like this:
A man molests a child.
The man confesses to his priest.
The state in which the acts happened has passed a mandatory reporting law for priests that learn of molestation.
Now, if the man confessed the crime while he was in prison to the prison chaplain, does RLUIPA allow the priest-penitent privilege to trump the state reporting law? It seems that there is a possiblity for prisoners to gain more protections than non-prisoners in regards to an evidentiary privilege, certainly a weird result. I wish I could remember what I’d written…
lyle - December 12, 2005 at 1:40 pm
The silliness of RIULPA is only surpassed by the silliness of Smith and the Court gutting the Free Exercise Clause to begin with.
Nate Oman - December 12, 2005 at 2:05 pm
Nick: I think that RLIUPA would gut the state law. At the very least, as it applied to prison chaplains, it seems to me that at the very least it would be subject to compelling state interest analysis, which it might survive…
Nick Gillard-Byers - December 12, 2005 at 3:12 pm
Nate: I agree that RLUIPA wins out, and clearly the state reporting law would triumph over any privilege claim (assuming that there is no state law priest-penitent privilege, as is true in many states), so a convicted child molester is protected from a reporting statute targeted at child molesters simply because he has been arrested for a different molestation. I know we’re talking about an extremely rare case, but it’s certainly possible and absurd. I undoubtedly lean to this example because of my own issues with RLUIPA, but I think my analysis is correct.
Blog from the Capital - December 13, 2005 at 11:20 am
Concurring Opinions: “Irony” in Religous Expression Law
Writing at the blog Concurring Opinions, attorney Nate Oman tells of some ironic lessons learned from litigating through the RLUIPA, the Religious Land Use and Institutionalized Persons Act. It recently occurred to me that this law creates a neat littl…
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