Whether it's a Kosher diet, long beard or sweat lodge, inmates have a long list of accommodations they seek in order to follow their religious beliefs during incarceration. Since 2000, those rights have been protected under the Religious Land Use and Institutionalized Persons Act, but the parameters of that law have been debated all the way up to the Supreme Court.

This year, the Supreme Court's decision in the case Cutter v Wilkinson shed light on the applicability of RLUIPA, but it also spelled out the deference that lower courts should give to prison officials around security issues. It is likely, however, that more cases are will come forward to clarify the depth of RLUIPA's range.

“Most of the things they [inmates] request are not an issue. The ruling on the Cutter case basically brought forth some clarification that RLUIPA was constitutional; the court said it was,” said Gary Sims, Sr., Religious Services Administrator for the Ohio Department of Rehabilitation and Correction.

Officials from the Ohio DRC were named in the lawsuit, which was decided by the Supreme Court in May.

In Cutter, which consolidated several Ohio inmate RLUIPA cases, the inmates claimed they were denied access to religious literature, ceremonial items and time to worship. The inmates, who said they participated in non-mainstream religions, claimed that these rights are protected by the constitution and under Section 3 of RLUIPA.

Ohio prison officials challenged the case claiming that RLUIPA improperly advances religion in violation of the First Amendment's Establishment Clause, it is barred by the Tenth Amendment and exceeds Congress's powers under the Spending and Commerce Clause. The Supreme Court, on appeal from the Sixth Circuit Court of Appeals, ruled that Section 3 of RLUIPA is indeed applicable to prisons and does not violate the constitution.

“The state argued that that [RLUIPA] would destroy the ability of prison officials to make sound administrative judgments and security judgments. Our view was that was a silly argument because the courts would take into account the presumably sound judgment of prison officials in circumstances where it is appropriate to do so,” said David Goldberger, attorney of record for the prisoner plaintiffs in Cutter and a Law Professor at Ohio State University College of Law, Columbus.

In fact, in the opinion for the court in Cutter, Justice Ruth Bader Ginsburg wrote, “We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”

Because of this language and other statements in the opinion showing deference to prison officials and security interests, the opinion is important for both offenders and officials.

While the Cutter ruling is a win for offenders seeking to affirm their right to practice religion in prisons, it is also a yardstick by which prison officials can measure their approval of religious accommodation requests.

Security Interests and Future Cases

Marci Hamilton, Law Professor at Cardozo School of Law at Yeshiva University in New York City, sad that up until the recent Cutter ruling, RLUIPA meant that correctional facilities were held to a very high burden of proof to enforce prison regulations.

This could mean an astronomical expense, Hamilton said, if prisons had to find meeting space and meet other accommodations for each and every religion offenders claim to belong to. But now, the Cutter case has loosened that burden.

“With Cutter, the court said they didn't really mean that high of a standard. They [the courts] are supposed to defer to prison authorities. It made it easier [for prisons] to enforce their regulations,” she said.

That is what Goldberger is afraid of.

He said the Supreme Court's decision in Cutter actually raises more questions about what deference to prison officials really means and how it could play out in the future.

“Basically what RLUIPA does is require that where there's a burden on religious exercise that the DOC has to show a compelling governmental interest to justify the burden. The courts generally look at that as a heavy burden of proof. [But now] some lower courts have interpreted this language so liberally that they are deferring to every wink and nod of prison officials, but that will have to work itself out over time,” he said.

But there are several RLUIPA case decisions from the federal Circuit Courts that indicate that inmate's rights are alive and well.

In the 9th Circuit in August, a three-judge panel ruled that the California prison system's ban on long hair for male inmates violated the inmate's religious freedom.

The inmate in the case, Billy Soza Warsoldier, is a Cahuilla Indian who served 14 months in a minimum-security prison. He said his religion teaches that hair symbolizes and embodies the knowledge that a person acquires during a lifetime. For violating prison policy with the length of his hair, he was confined to his cell, denied good time credits, classes, telephone calls and other benefits.

The 9th Circuit said that the California prison system does not limit the length of female prisoners' hair and neither does the federal Bureau of Prisons or other states. As a result it remanded the case back to the lower court for further consideration consisted with its ruling.

In 2003, the Florida Department of Corrections entered into a Settlement Agreement with inmate Alan Cotton, who had been trying for several years to obtain Kosher meals during his incarceration.

Cotton field a lawsuit in 2002 charging violations of RLUIPA and following reports from a federal judge and state court, the DOC agreed to provide Kosher meals. It also stipulated that any questions about whether a food item is Kosher would be resolved through the DOC's chaplaincy services, which will consult a rabbi.

Although the DOC's plan went through several revisions, in 2004 it was implemented.

Also last year, in Bass v Madison, the 4th Circuit ruled in favor of a Hebrew Israelite inmate who was denied his request for kosher meals. The state of Virginia denied his request based on the adequate alternatives available to him, it doubted his sincerity of his religious beliefs and it considered his history of disciplinary problems. The Circuit Court, however, ruled that RLUIPA does apply.

Accommodation After Cutter

According to Paul Rogers, President of the American Correctional Chaplains Association, the standards that corrections agencies must follow in terms of religious accommodation are complicated and legalistic.

"They must demonstrate a compelling state of governmental interest to limit the practices or property and use the least restrictive means [for applying their policies]," Rogers said. "You need the right people to help interpret these words."

Rogers said the courts have recently addressed hair grooming policies and the provision of Kosher diets -- and the application of both should be carefully considered by corrections agencies.

If you have good professional chaplains, they can assist a department in going through this minefield. There are sometimes frivolous claims and legitimate claims. If you have professional chaplains working with you, you won't be in court as often," Rogers said.

Since the ruling in the Cutter case, officials in Ohio's prison system have gone back to their policies and have made some adjustments.

According to Sims, the changes are relatively minor, but may help the DRC address religious accommodation requests consistently.

Sims said the process for reviewing religious accommodation requests now has been separated from the request process for changing religion designation. And, in general, the department is paying closer attention to the requests that come in.

"In Ohio we have been very sensitive and have begun to look at providing temporary exemptions [to security rules] and we are looking at additional research and talking with faith communities. We also weigh that against the inmate's history. If they have a history of contraband, we weigh that too," Sims said. "If a religion causes a major problem with security, then we're not going to do that."

For example, a request coming form a member of a religion or group that is on record as a hate group would raise a red flag, he said.

"The other thing we have to look at is there are a whole host of religions and you can't give carte blanche to everything. The majority groups can have the freedom to practice, but we also provide every inmate the ability to have a spiritual advisor," he added.

Sims explained that a general religious service may be scheduled that all inmates are welcome to participate in and then they may also have a specific advisor or minister come to visit with them separately.

According to Barry Smith, who coordinates religious services for the California Department of Corrections and Rehabilitation, the department looks at each religious accommodation request with an eye toward its reasonableness in terms of security.

"We place no value on the religion. We look at it as-it-is and accommodate it on a reasonableness standard," he said.

Smith added that the application of the department's grooming policy, which was the subject of the Warsoldier case before the 9th Circuit, has been modified to a case by case analysis.

"We have modified [it] to accommodate those who request it [an exemption from the policy]. If they come to us, we will evaluate it. We look at the religion and the terms of the religion and [whether] is it a sincerely held belief," he said.

The new version of this policy, Smith said, is being drafted currently and will not be in place for several months.

Although the research required to thoroughly consider inmate religious accommodation requests may be painstaking and take time, departments of correction have realized that they must be committed to applying a reasonableness standard when appropriate.

"There are different levels of [religious] practice and we are a pluralistic society with different religions, which makes it more challenging. We don't just have protestants or evangelicals being locked up. It's a daunting challenge," said Rogers.
 
And those analyzing the recent RLUIPA cases believe that the courts are going to be respectful of the need to balance secure prisons with religious freedom.

"The opinion [in Cutter] -- the courts were pretty gracious in understanding that we deal with a pretty dangerous population and they gave us the altitude and freedom not to impinge on our ability to maintain security. It was a win for religious rights and it gave us an ability to operate in the manner [we need to]," said Sims.

The future of RLUIPA will likely bring about a more detailed dissection of the law in relation to the constitution and will clarify further its role in correctional institutional, according to legal experts.

“The first issue that will go back to the Supreme Court is constitutionality. The open question they left is whether or not Congress had the right to enforce this anyway,” said Hamilton.

But until those cases come forward, the message to lower courts and to corrections officials is to apply RLUIPA with a serious eye toward security issues, according to George Washington University Law Professor Ira “Chip” Lupu.

“A prisoner may win a case occasionally about Kosher diet, because there's no good security argument, but if it's going to threaten security, then they aren't going to win,” said Lupu. “Courts should be very respectful to prison officials' arguments that certain accommodations of religion will cause security problems.”

Resources:

Pew Forum on Religion and Public Life  http://pewforum.org/

Roundtable Resources on Supreme Court Case Involving Religious Rights of Inmates http://www.religionandsocialpolicy.org/resources/article.cfm?id=2512