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

I read Brother Likko’s post on the (often seemingly bizarre) flexibility and questionable sincerity of prisoners’ religious beliefs, and their willingness to file suits to protect those questionable beliefs with great interest. These suits, which are indeed frequently frivolous on their face, are something that Brother Likko indicates he feels compelled to apologize for on behalf of lawyers everywhere (even though most such suits are pro se), as they gum up the system and cost taxpayers money, and I certainly understand where he’s coming from in making such an apology.*  However, many of these suits, frivolous as they may be, are likely symptoms of a deep-seated problem with the philosophy that undergirds our  prison system.  Where Brother Likko anticipates an avalanche of these suits to pick up steam in coming years and hopes that this will ultimately lead to the weakening of exemptions for religious beliefs, I hope and indeed half anticipate that they may finally force the reevaluation of our dehumanizing prison system.

I.  The Forthcoming Avalanche of Prisoner Religious Freedom Cases

[N/B: If you’re not interested in a recap of Burt’s post and our longrunning debate on the effect of the Hobby Lobby decision, please feel free to skip to section II]

Burt writes that he believes in the wake of the Hobby Lobby and Holt religious freedom cases**:

A prisoner who claims a religious belief requiring a particular kind of practice could reasonably expect minimal scrutiny of the belief and the practice and whatever kind of prison rule is implicated, and instead enjoy the spectacle of the courts requiring the state’s attorneys to offer elaborate and credibility-straining justifications before eventually losing and having to make special accommodations.  It might start with a beard, but there seems to be no limit to where the prisoner-making-the-warden-dance charade might end.

Brother Likko has long expressed concern (particularly as an atheist who fears he is not protected by religious freedom protections) that an expansive reading of the Religious Freedom Restoration Act (“RFRA”) and its near-identical related statute, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), will effectively exempt anyone claiming to hold even fairly ridiculous religious beliefs from laws of general applicability.  He has also consistently insisted that such an expansive reading of these statutes, demonstrated by Hobby Lobby and Holt, is relatively new and a significant change in the law that may have disastrous consequences.  In his current post on prisoner religious freedom litigation, he notes that the religious beliefs of prisoners often appear to be highly plastic and that Hobby Lobby and Holt are thus likely to create a surge in potentially successful (or at least expensive) prisoner religious freedom litigation based on highly dubious “beliefs” of doubtful sincerity. He suggests, finally, that such an increase may create a backlash that, he hopes, will force a weakening of RFRA and RLUIPA.

I must respectfully disagree, which is perhaps not surprising given our debate over the Hobby Lobby case last year. First, I strongly disagree that recent cases have really changed the way that the courts review religious freedom cases. However, it is impossible for me to deny that these cases have been far more high-profile, thus allowing the lowness of the bar for RLUIPA and RFRA claims to be more in the public eye.  As such, I suspect Brother Likko is correct that prisoners’ rights litigation under RLUIPA is likely to become even more pervasive in light of these cases, and that claims of sincerity of beliefs are likely to become increasingly questionable. This is true whether or not courts in fact have become/are becoming more receptive to religious freedom claims – as long as there is a mere perception that this is occurring (and I concede that there is), more claims will be filed, which in turn means more claims will be successful and/or will reach a sufficiently high profile to enter the realm of public awareness, even when the sincerity of the belief in question is dubious at best.

II.  Why RFRA and RLUIPA Will Not Be Weakened

Unlike Burt, however, I do not think it a given that an increase in successful-but-dubious prisoner religious freedom litigation will create a chance for an “eventual brake on [what Brother Likko views as the] seemingly limitless judicial deference to religious rights.” Instead, I think the trend may create an opening for something few would expect: meaningful prison reform, and perhaps a dramatic shift in the philosophy underlying much of our prison system.

Politically, even with a rise in dubious religious freedom prisoner litigation, I do not think weakening RLUIPA, much less RFRA itself, will be remotely feasible any time soon.  These two statutes are broadly – and identically – worded, allowing exemptions for “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” unless the government can show that applying the rule/law to the plaintiff is both in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.  The broad reading of which Brother Likko complains is almost impossible to avoid (which is why I disagree that Hobby Lobby and Holt meaningfully expanded these statutes), and thus the only way to narrow either statute would be to do so legislatively on the federal level, which means getting 60 votes in the Senate.  

To say that maintaining an expansive version of RFRA (or even creating an even more expansive version) is a high priority issue for evangelical voters, who make up fully half of GOP primary voters, would be an understatement, to say the least. Similarly, it is unimaginable that the small but growing segment of libertarian-ish Republicans would be willing to support legislation that would weaken RFRA.  Additionally, a strong RFRA is likely critical to the GOP establishment-types, as it provides a way to maintain peace between social conservatives and more socially moderate or liberal factions that the establishment hopes to attract to the party, as well as potential GOP voters who are not Christian.  Although Democrats, post-Hobby Lobby, have almost entirely abandoned the expansive view of religious freedom once most prominently pushed by Justice Brennan, they would be unable to directly weaken RFRA absent a supermajority in the Senate plus control of the House and Presidency.   

But Brother Likko’s suggestion seems to imply that RLUIPA, with its protections specifically for prisoners, would be the avenue to chip away at this – while the statutes are near-identical, there is no theoretical reason why RLUIPA couldn’t be weakened as a precursor to weakening RFRA.  This, however, is unlikely for two reasons.  First, a direct attack on RLUIPA would raise no less vociferous objections from evangelical/religious conservatives – again, the language in RLUIPA and RFRA is identical, so religious conservatives would surely see any proposed attack on RLUIPA as the Trojan Horse that it would, in fact, be. While such a slippery slope concern is less powerful than a direct attack on RFRA might be, there is another – hugely important, but vastly underreported – trend amongst religious conservatives that is specifically relevant to RLUIPA and prisoners’ litigation.  Specifically, although religious conservatives are still quite happy to frequently push the law-and-order line, this attitude has reversed dramatically on the topic of prison reform in recent years.  Instead, prison reform – a question of Christian mercy – has become an increasingly important issue to evangelical and religious conservatives in recent years, and it is evangelicals who have become arguably the most influential advocates of prisoners’ rights in that period of time.  An attack on RLUIPA thus would not only be viewed as a step towards weakening RFRA, it would also be a direct attack on evangelicals’ efforts at prison reform.  Meanwhile, an attack on RLUIPA would likely run into opposition from some traditionally liberal groups, not least of which would be the trial lawyers’ association, but also presumably African-American church groups and the ACLU.  Whatever support gained for weakening RLUIPA from centrist Republicans would almost certainly be offset y the loss of support from such traditionally Progressive constituencies.

This does not mean, however, that nothing will happen as a result of a hypothetical increase in dubious prisoner litigation.  To the contrary – and counterintuitively, given the dubious nature of such suits – such a hypothetical increase in prisoner litigation may cause us to dramatically rethink the way our prison systems operate in this country.  

III.  Why a Rise in Dubious RLUIPA Claims May Force Meaningful Reform of Our Prisons

To be clear, an explosion in successful (or even just unsuccessful but expensive) RLUIPA suits would create a potentially huge problem that could not simply be ignored.  It would increase the strain on already overburdened courts, and increase the cost of our prison system, amongst other problems no doubt. The cheapest and easiest way to solve such a problem would be, as Brother Likko suggests, weakening RLUIPA, but as I mention above, this would probably not be politically feasible.

The more workable way of preventing RLUIPA suits, then, may be to change the philosophy of how prisons are run in this country such that they reevaluate the purpose of prison and, in the process, are able to more unquestionably comply with RLUIPA.  Such reforms would not require much in the way of legislation, as most policies are typically questions of administrative rules or even just individual warden decision-making, meaning that these types of reforms could often be implemented through focused lobbying campaigns rather than time-consuming and politically difficult coalition building and compromising.  National legislation in particular would be unnecessary given that federal prisoners are only a small fraction of those serving time in American prisons.

And let me be clear: a dramatic rise in successful or at least costly RLUIPA suits could only be solved by a rethinking of our philosophy of imprisonment in this country.  The main issue in RLUIPA and RFRA suits, as Brother Likko laments, is not whether the plaintiff has a sincere religious belief – that issue is instead largely just presumed to be true.  Similarly, it will typically be the case, particularly in the prison context, that the alleged burden on the belief is “substantial,”  as all that is required for a substantial burden is that the thing complained-of either be required by the government or the intended outcome of substantial pressure by the government.  Instead, the issue in such suits almost always turns on whether the government has chosen the “least restrictive means” for furthering a “compelling government interest.”

Although a “compelling government interest” sounds like a very restrictive and high bar for the government to meet, in practice it is not overly difficult.  In the context of prisoner litigation, for instance, the “compelling government interest” test is met by the government indicating its interest in “maintaining order, safety, security, and discipline.”  Kikimura v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001); see also Holt, ____ S. Ct. ____ (2014)(noting that prevention of flow of contraband into prison is a compelling interest); cf. Hobby Lobby, 573 U.S. ___ (2014)(presuming government had compelling interest in ensuring access to contraceptives).

As a result, the action in these types of cases will typically be on whether the means of achieving the “compelling government interest” is the “least restrictive” means as applied to the particular plaintiff.  This means that the prison official needs to show and argue that imposing the particular policy on the particular prisoner actually serves its purported purpose.  He cannot simply say “prison isn’t supposed to be summer camp” and have that be the end of it.  He cannot justify the application of the policy on the grounds that it should be viewed as punishment for the prisoner’s underlying crime.

That doesn’t mean that he has to treat the prisoner like the resident of a resort or make prison a pleasant place to live.  What he does have to do, though, is show that he treated the prisoner as an individual, not as a mere number.   What he has to do is give consideration to why the prisoner is under his stewardship and what is necessary to fulfill that stewardship.  What he has to do is show that he’s trying to help the prisoner reform, keep other prisoners safe, and keep the prisoner himself safe.

More importantly, though, he has to actually do these things. Simply and succinctly put: he has to treat the prisoner as an actual human being.  While there is no way to entirely get rid of dubious prisoner rights litigation, the fact of the matter is that a prisoner who feels he is being treated like a human being is going to be a lot less likely to find it worth his while to turn to the court system to exact revenge on his warden.

And let us be clear – the dubiousness of inmate claims of religion absolutely pales in comparison to the dehumanizing philosophy that undergirds our prison system. In this system, prisoners are treated as, essentially, automotons – they must wear the same clothes, eat the same food, follow the same routines, etc., risking severe, even more dehumanizing, punishment for any infraction.  This dehumanization serves no purpose other than itself. Far from keeping prisoners safe or encouraging prisoners to reform, there is strong evidence that this philosophy pushes inmates into prison gangs. These one-size-fits-all policies that ostensibly exist to make prisons safer seem to have done nothing to deter the extraordinary levels of violence in our prison system.  Nor can it be said that the philosophy of dehumanization has been effective at protecting the public from released inmates, given the extraordinary recidivism rates faced in the United States.

Perhaps the solution, instead of imposing dehumanizing one-size-fits-all rules to impose uniformity on prisoners, is to adopt policies that treat prisoners as individuals.  And it is these one-size-fits-all rules that RLUIPA suits, dubious as the claims of religion may be, of necessity target, since they specifically seek individualized exemptions from one-size-fits-all policies.  If a prisoner wants to wear a green shirt instead of an orange jumpsuit so he can feel like an actual human being, why shouldn’t the warden have to justify the arbitrary orange-jumpsuits only policy?

If the only way to force the warden to make that justification is for the prisoner to find a religion that requires adherents to wear green, why shouldn’t he be allowed to convert – isn’t the belief in one’s own humanity inherently religious even if the specific religion chosen as a vehicle for that belief is a mere pretext?  This, after all, is what freedom of religion is really about.  It is not about your right to follow the tenets of a particular organized faith.  It is about something far more fundamental – even as we use the terminology of “religion,” the freedom, we are in fact discussing is a human being’s unalienable freedom of conscience, quite literally their right to be a human being.  As James Madison wrote: “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.  This right is in its nature an unalienable right.”  

The silliness in prisoner claims of religiosity may come across as frivolous even as courts must generally defer to those claims, but the fact is that there shouldn’t even need to be a claim of particular religiosity to vindicate their right to be treated as a human being with a conscience.  If it takes some dubious claims as to the religious origin of some beliefs to force wardens to treat prisoners like human beings and to keep the goals of incarceration in mind, then so be it.  Even if you’re an atheist, the belief in the right to be treated as a human being ought to reasonably said as bordering on the religious.  Given the manner in which prisoners in the United States are treated, we should be less concerned about dubious inmate litigation, and more concerned with making prisons safer, less enabling of prison gangs, and better at helping prisoners reform.

Perhaps an avalanche of RLUIPA suits will leave our prison system with no choice but to change the dehumanizing philosophy under which it operates.

*Though not a religious freedom case, a good example of the types of frivolity often involved in prisoner litigation is one serial litigant’s “Motion to Kiss My Ass.”

**Although Hobby Lobby was not a prisoners’ rights case, the statute under which it was decided, the Religious Freedom Restoration Act, uses virtually identical language as the Religious Land Use and Institutionalized Persons Act that is the basis for most prisoner religious freedom litigation.

[Post image – Jose Maria Martinez Praying to the Virgin of Remedies of Mexico, 1798, unknown artist]