The Promise of Dubious Prisoner Claims of Religious Freedom: An Opportunity for Real Prison Reform

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Burt Likko
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    Would that it will be so, Brother Thompson. But you must count me among the skeptics.

    I’ve long shared the opinion that there is no particular reason that prisons must be the violent, dangerous, and dehumanizing places for inmates that they are now; they are thus because someone wishes that they be this way, and the rest of us pretty much don’t care enough about it to stop them from being so. It really doesn’t take a heavy intellectual labor before one realizes that being confined to a prison is bad enough, without adding to the experience the fear of death, assault, rape, and the endless parade of humiliations ranging in scope from the gross to the petty.

    There is a strain of political thought leading to the notion that the worse a prison is, the better it is at doing its job. The worse a prison is, greater its power to deter would-be criminals from actually committing their crimes. The worse a prison is, the greater the retribution society exacts when it sends a convict there. So there’s this line of thought that it’s perfectly OK that prisons be violent, dehumanizing places. And it’s sometimes so because of the way the prisons exert their power over the prisoners, other times so because the prisons take a hands-off attitude towards how prisoners behave.

    That’s fundamentally inconsistent with the mindset Brother Thompson describes in the OP manifesting as the flower of RLUIPA litigation. But it is something that seems to be embedded in the culture. If it takes a generation of RLUIPA litigation to get people to realize that prisons have a better shot at actually rehabilitating their inmates when they are afforded a degree of dignity on the inside, that’ll be a substantial silver lining to the warp in the fabric of the law which I fear will result from the repeated, public application of religious exceptions to the laws.

    I might feel better about all of this if we had either a meaningful way available of really sorting out the sincere from the frivolous religious claims (in the previous thread, @gabriel-conroy asked me about this and I concede that as it stands, no such test has been developed and as a theoretical matter, it’s difficult to conceive of what such a test might be) or if we had some examples of the government meeting its burden under the “super-Sherbert” test found embedded in RFRA and RLUIPA. While the OP is correct that in theory the government can create rules which pass strict scrutiny, and in fact the OP could go further and point out that in other circumstances, the government has a reasonable success rate, in the context of invocation of religious free exercise rights, it’s difficult to find examples of the government prevailing. So we can’t know where the contours of the law really are, which is why I describe the scope of this new standard as seemingly lacking limit.

    Better treatment of prisoners makes sense for all sorts of practical as well as moral reasons. I sincerely hope that given the state of the law, this will become one of its beneficial effects. Alas, I cynically doubt that the optimistic prediction of this post will come true.Report

    • Avatar Mark Thompson in reply to Burt Likko
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      Thanks for the comment, Burt. One point of slight, but important, clarification, if I may:

      If it takes a generation of RLUIPA litigation to get people to realize that prisons have a better shot at actually rehabilitating their inmates when they are afforded a degree of dignity on the inside, that’ll be a substantial silver lining to the warp in the fabric of the law which I fear will result from the repeated, public application of religious exceptions to the laws.

      I don’t think it’s necessary for RLUIPA litigation to get the general population to realize what needs to happen for prisons to function more rehabilitatively. It’s certainly possible that could happen, but I think that by the time such a sentiment took hold, the change in prison philosophy would have already been well under way.

      My thinking here is that the prison policies that are so problematic tend to be implemented outside of the legislative process. They’re typically administrative and executive decisions, often on the individual prison level, with which the public usually does not concern itself. There are exceptions, obviously – Sheriff Joe Arpaio comes to mind – but by and large there isn’t much electoral interest in particular prison policies.

      Politically, then, changing these policies is not overly difficult (by comparison, changing RFRA and RLUIPA is politically very difficult). Functionally, the obstacle to change is the mindset of prison administrators, as well as the prison guards’ unions, the latter of whom are increasingly being neutralized by the small but vocal and growing movement of evangelical prison reformers.

      To the extent that the unions and evangelicals cancel each other out, the decisionmaking of prison administrators is going to be heavily influenced by two very powerful forces: (1) their lawyers; and (2) their accountants. Prison administrators have budgets, and litigation is expensive, especially if you can’t knock it out at the motion to dismiss stage. It’s also time-consuming for the relevant officials if they can’t knock it out at that stage.

      My wager is that at some point, prison administrators are going to have to ask themselves just how important it is to them that they maintain these types of dehumanizing policies.

      Quickly, regarding cases where the government has met its burden under RFRA and RLUIPA, it will be interesting to see what, if anything, the SCOTUS does about this: http://www2.ca3.uscourts.gov/opinarch/133536p.pdf

      The 3rd Circuit ruled in favor of the government on substantial burden grounds, but it seems that their reasoning is identical to how they would rule in favor of the government under a least-restrictive means test.

      One other, quasi-related thought that makes me optimistic about broad RFRA-style protections: it will force government to make better policy generally by forcing it to show that applying the policy in a given situation actually accomplishes the policy’s goal. That means that effectiveness must be the sine quo non by which policy decisions must be made. But that’s another post altogether.Report

      • Avatar Burt Likko in reply to Mark Thompson
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        I’ma read that case in some detail later. Am I right in my quick skim that this is a suit by formal religious entities (I saw at least one RCC archdiocese in there as a party) arguing that even though they can get a contraception mandate exemption under PPACA, even having to fill out the exemption claim constitutes a form of providing contraception, because it sets in motion a chain of events by which contraception is provided to its employees by way of a third party administrator?

        (Who pays for that administrator seems to be the relevant question there.)Report

      • Avatar Kazzy in reply to Mark Thompson
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        I don’t have much to say on the matter at hand but do want to say how fascinating it is to read you two share an exchange on the matter. Should you ever decide to do a dual post, I’ll be the first to read it. Bravo, @mark-thompson and @burt-likko .Report

  2. Avatar Gaelen
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    First I want to say that this was a thoughtful and thought provoking OP, kudos.

    Second, I’ll +1 what Burt said, and maybe even double down. As much as I agree with the sentiment in the post regarding the needlessly dehumanizing conditions in prison, an increase in (perceived) patently frivolous religious lawsuits is just as likely to lead to entrenchment of the status quo, or, possibly, a lessening of the governments burden, so as to lessen the cost to both prisons and court.

    I can easily imagine that instead of acknowledging the inherent dignity and humanity of prisoners, when the issue is framed as a cynical plow by prisoners using religion to get special treatment, it will be viewed as another reason to tighten the screws.Report

    • Avatar Burt Likko in reply to Gaelen
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      Well, in large part in defense of the OP, I do think that it is possible for the creation of a legal claim to, over time, mold the culture and actually change peoples’ hearts and minds. The obvious example is Title VII — by putting the power of the courts in the hands of individual litigants aggrieved by certain kinds of discrimination, a broader ethic of anti-discrimination has been created. And it took an entire generation of people growing up never knowing a world other than one in which the courts would step in and correct discrimination in tones of sharp moral condemnation.

      Now, RFRA and RLUIPA are not new laws, although their utility and scope has only recently been employed in really powerful, high-profile ways, so in that sense it’s kind of like they’re new. Whether the scope has been meaningfully expanded by recent SCOTUS activity as I see it, or whether all that’s happened is we’re paying attention to what’s been going on all along as Mark sees it, as a political matter, it’s like these are new laws.

      So we may be molding a future generation of people for whom the ethic underlying RFRA and RLUIPA are taken as a matter of course, as a relatively unremarkable part of the moral background of how they navigate the world, society, the law, and their faiths. And in some ways, I share Mark’s hope that this could yield some very good cultural results. More freedom, more better.

      As I consider the issue more, I realize I didn’t describe another caution, which is that in practice, only mainstream or popular religions will get exceptions and other religions will not. It’s politically easy to grant exceptions to laws that help people who participate in relatively popular religions — letting minors take a little sip of the altar wine at a Catholic Mass, for instance. More unconventional religions will test the limits of peoples’ willingness to tolerate practices they disapprove of generally: sacrificing live chickens in a Santeria ritual, for instance, made the political leaders of Hialeah, Florida recoil in disgust. (OTOH, a lot of people rallied in support of the right of native Americans to smoke peyote.)

      Reading this post and mine in conjunction leads me to think, therefore, that the testing grounds are going to be a prisoner practicing one of these non-mainstream religions. While I sure hope the happy outcome Mark predicts here will come true, my money will be going on sooner or later some prisoner doing something that seems edgy to the rest of the world gets granted license to do it and there will be a political backlash that we aren’t going to like very much.Report

      • Avatar Gaelen in reply to Burt Likko
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        “I do think that it is possible for the creation of a legal claim to, over time, mold the culture and actually change peoples’ hearts and minds.”

        As do I. I just think a backlash is an equally plausible result to prisoners filing, and the courts perhaps granting, a greater number of frivolous suits, or ones based on exotic religious beliefs.

        As Marks argues above, one option for prison administrators when faced with the growing number of lawsuits is to change some of the dehumanizing policies. Another, not mentioned, is for those administrators and guard unions to implement a public relations strategy intended to limit inmate’s use of these statutes, through either restrictive court readings, or explicit statutory change. I find the latter option more likely

        Personal experience may also have made me unduly pessimistic regarding our criminal justice system.Report

      • Avatar Mark Thompson in reply to Burt Likko
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        says:

        @gaelen I can’t say that I blame you for your pessimism on this. I’d say in response that there’s one countervailing fact that has recently been emerging that has changed my pessimism into optimism: the rise of evangelical interest and willpower on the issue of prison reform. Conservative evangelicals are, obviously, not the most popular of groups around these parts, and often for good reason. But there really does seem to be some serious passion on the issue of prison reform that has emerged within that segment of the population in recent years. What’s more, they’re well-funded in a way that the prison guards’ union probably can’t be – the political might of the prison guards’ union tends to be a function of its collective bargaining abilities, and ability to mobilize its membership on narrow issues. They also, increasingly, will have to overcome the issue of rising anti-union sentiment on the Right, which is traditionally the group on which they’d need to rely for support on issues they can frame as law-and-order issues (rather than compensation issues).

        But it’s probably best for me to frame this as a cautious optimism – your reasons for pessimism are certainly valid and there’s no guarantee the aforementioned countervailing force will prevail or even just neutralize your concerns (which is really all I think may be needed).Report

      • Avatar Gaelen in reply to Burt Likko
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        says:

        @mark-thompson
        You may well be right. I wasn’t aware of evangelicals changing position before your post, and that could certainly change the political dynamics of prison reform. We can only hopeReport

      • Avatar Mark Thompson in reply to Burt Likko
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        says:

        @gaelen I wouldn’t say they’ve changed positions on the issue – there have been a group of them working on it for quite some time, most prominently Chuck Colson. IIRC, though not an evangelical, Rep. Frank Wolf, who is quite socially conservative, also pushed the issue for decades prior to his recent retirement.

        What’s changing is that it’s becoming a higher priority issue within the evangelical community, and one that evangelicals are willing to put some real effort into. I’ve written a lot before about how political coalitions in our two party system are a matter of prioritization of issues and intra-coalition compromises, and that eventually these coalitions become incoherent as some constituents’ high priority items are achieved and de facto compromises on lower priority issues start to be masqueraded as if they were matters of principle.

        At some point, as this argument I’ve developed goes, the constituent groups start to ask themselves what good the compromises are doing them for what they actually care about. At some point they start asking what the point of maintaining a coalition and getting power is if they can’t actually seek what’s really important to them without enfuriating another part of the coalition.

        That’s what’s happening to the GOP right now, as I’ve been arguing. Part of that is Christian conservatives starting to realize that a lot of what they’re now forced to expend their political efforts on (or at least be silent on) in service of the “three legged stool” of conservatism isn’t terribly Christian and is actively preventing them from expending efforts on things that really are Christian.

        Basically, mercy has always been an important element of Christianity. It’s just been an element of Christianity that’s been de-prioritized as a political matter for awhile, though Bush II’s “compassionate conservatism” sought to change that (and very well may have were it not for 9/11).Report

  3. Avatar Mike Schilling
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    says:

    I know that the names of pieces of legislation bare no necessary resemblance to reality (e.g the Patriot Act), but was there supposedly a point at which religious freedom had been taken away and required restoration?Report

    • Avatar Burt Likko in reply to Mike Schilling
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      says:

      According to Congress, yes indeedidilley-eedy. See sections 2(a)(4) and 2(b)(1) of the chaptered legislation to get some good old fashioned (well, actually this sort of thing is relatively newfangled, as laws go) explicit legislative intent. Brother @mark-thompson is quite right to argue that Congress intended a wide sweep and broad application of this law, and so maybe the Courts are just doing what Congress told them to do.Report

      • Avatar Mike Schilling in reply to Burt Likko
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        says:

        I have a hard time believing the RFRA was passed to defend peyote users, or really any religion besides the majority one. So, how were Christians being denied their rights?Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        If Smith and his coreligionists could be prosecuted for smoking a button of peyote in pursuit of their religion, then there was nothing to prevent Catholic priests from being prosecuted for dispensing altar wine to kids during Mass in pursuit of their religion. Nothing save the discretion and forebearance of law enforcement authorities.Report

      • Avatar Mike Schilling in reply to Burt Likko
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        says:

        And the reaction of the people who elect DAs and judges, as well as vote on police compensation packages.Report

      • Avatar Mark Thompson in reply to Burt Likko
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        says:

        @mike-schilling The answer to this line of questioning is, I think, actually quite interesting, and worthy of a full post, though I’m not sure I’ll have time to put it together. But I’ll try to give an abbreviated response here, because I think it says a lot about how politics have changed in the last 22 years, as well as about legislative processes and probably some other stuff too. Apologies if this meanders beyond the scope of your comment, but there’s a lot that’s interesting here.

        So here goes:

        1. RFRA has obviously become a source of huge frustration and annoyance for liberals, while also being a rallying call for conservatives, because of the Hobby Lobby case. But the Sherbert test that it reinstated when it was passed in 1993 was viewed at the time as somewhat of a cornerstone of liberal jurisprudence. That test came about only after several years of Justice Brennan – arguably the greatest liberal jurist of the 20th century – writing beautiful, passionate minority opinions trying to stand up for the rights of religious minorities. He finally won the battle with his Sherbert opinion, which was a testament to diligence and the power of liberal thought. The Employment Division case undid this completely, and was thus something that understandably would have stirred liberals to action to reinstate what was viewed as an important liberal accomplishment.

        2. A couple of years after RFRA was passed, there was a 6-3 decision where the SCOTUS ruled that RFRA could not apply to state laws, but only federal laws despite its language due to federalism concerns (RLUIPA still applies to state prisons, though, because it’s tied to funding). This severely limited the reinstatement of the Sherbert test, since most of the cases where that test had been previously applied involved state laws, including most of the worst abuses that Justice Brennan was concerned about. In the last couple of years, there have been several states that have tried to institute the equivalent of RFRA through their own legislation. To say that liberals have been unreceptive to these efforts would be an understatement – Arizona was boycotted over its attempt to do so, and liberals were ultimately successful in forcing the GOP governor to veto it.

        3. There are obviously reasons why liberals have fought so vociferously against state-level RFRA legislation in recent years – namely, the (accurate) perception that the state-level legislation was aimed at undermining anti-discrimination laws and the (probably inaccurate IMHO) perception that it would have in fact done so, but I mention the above just to show how drastically the politics of religious freedom have changed in the last 22 years – a cornerstone of liberal jurisprudence has become a target of extraordinary liberal ire.

        4. In 1993, I’m pretty sure that you’d find that the most devout Christian voters were a swing group in a way that they are not currently, and that this trend would have applied across most Christian sects, with the exceptions probably being Mormons and AME. There were still white Southern Democrats – indeed, we had just elected a pair as President and Vice President – but the GOP was well on its way to building its current massive advantage in this group. That made it important for both parties to try to make this group happy.

        5. But to get back to your point, why were Christian groups outraged about a decision that protected an AmerIndian religion when Christians were a majority who dictated policy? The answer is that there is no truly dominant sect of American Christianity, and each sect has its own particular beliefs and practices. With evangelicals, the particular beliefs and practices may not even be “organized” in any meaningful way beyond the individual’s personal reading of the Bible. The result is that, while Christianity as a whole may not be likely to be burdened or oppressed by any apparently general laws or rules, any particular sect of Christianity has historically been likely to suffer some kind of burden; often, these burdens have been intentional acts of local government discrimination, as well, as the locally dominant sect seeks to impose its beliefs on the minority sect.

        Many, many of the Sherbert era cases involved Seventh Day Adventists (including Sherbert itself), Pentecostals, Jehovah’s Witnesses, or Christian Scientists. While by the time of Sherbert it had become less of a problem, many adherents of the country’s largest Christian sect – Catholicism – had living memory of anti-Catholic discrimination. And of course Mormons have often run into problems where they are not the locally dominant sect.

        So that’s why Christians were outraged by the revocation of the Sherbert test, even if it occurred in the context of Amerindian peyote rituals.

        The test obviously also provided at least some measure of protection (though not enough in practice as Sherbert was weakened in the years leading up to Employment Division) to non-Christian minority groups, and that protection was, again, a proud achievement in the history of liberal jurisprudence.

        So getting rid of Sherbert managed to enfuriate just about everyone. By outright overturning it rather than continuing to chip away at it, Scalia managed to make it a high-profile issue that mobilized religious groups and civil liberty groups across the spectrum. RFRA passed less than three years later, and almost unanimously at that. I’d wager the main reasons it didn’t pass more quickly were that (1) international affairs were dominating in Congress at the time, with the fall of the Berlin Wall, the breakup of the USSR, and the First Gulf War; (2) the decision being a potentially useful extra cudgel in the subsequent Thomas confirmation hearings; and (3) the tremendous unpopularity of the decision, which again was written by Scalia, being a useful campaign issue for Clinton’s 1992 campaign. RFRA was passed just a month and a half after Clinton took office.Report

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