Comments on: Religion, Prisons, and the Irony of the Law

By: Blog from the Capital

Blog from the Capital — Tue, 13 Dec 2005 18:20:29 +0000

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…

By: Nick Gillard-Byers

Nick Gillard-Byers — Mon, 12 Dec 2005 22:12:03 +0000

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.

By: Nate Oman

Nate Oman — Mon, 12 Dec 2005 21:05:55 +0000

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…

By: lyle

lyle — Mon, 12 Dec 2005 20:40:33 +0000

The silliness of RIULPA is only surpassed by the silliness of Smith and the Court gutting the Free Exercise Clause to begin with.

By: Nick G-B

Nick G-B — Mon, 12 Dec 2005 19:27:17 +0000

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…

By: LT

LT — Sun, 11 Dec 2005 22:17:40 +0000

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.

By: SCOTUSblog

SCOTUSblog — Sun, 11 Dec 2005 19:39:02 +0000

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…

By: Nate Oman

Nate Oman — Fri, 09 Dec 2005 22:50:02 +0000

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.

By: Daniel J. Solove

Daniel J. Solove — Fri, 09 Dec 2005 22:28:27 +0000

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.

By: Paul Gowder

Paul Gowder — Fri, 09 Dec 2005 22:19:48 +0000

So the real question is: can I sell peyote to prisoners?

By: Mike

Mike — Fri, 09 Dec 2005 22:18:29 +0000

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.

By: Nate Oman

Nate Oman — Fri, 09 Dec 2005 21:58:05 +0000

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….

By: Mike

Mike — Fri, 09 Dec 2005 21:16:50 +0000

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.