“Be Christian or Be Penalized”: After Fourth Circuit Revives Muslim Prisoner’s Challenge, Virginia Jail Settles Suit for $30,000
by Douglas Ankney
On May 22, 2023, a $30,000 settlement was reached between officials with a Virginia jail and a Muslim prisoner who objected to its broadcasts of Christian religious programming, which he claimed violated the First Amendment prohibition against any government action “respecting establishment of religion.”
The agreement between Middle River Regional Jail (MRRJ) Authority and the prisoner, David Nighthorse Firewalker-Fields, came on the heels of a decision in his favor by the U.S. Court of Appeals for the Fourth Circuit on January 17, 2023. Declining to be “a court of ‘first view’ and not ‘a court of review,’” the Court revived and remanded to the district court the question of whether the programming violated the Establishment Clause.
However, the Court said that a companion challenge failed under the Free Exercise Clause of the First Amendment, since the comparative lack of Muslim programming at the jail where Firewalker-Fields awaited transfer to the state Department of Corrections reflected restrictions “reasonably related to legitimate penological interests,” as laid out in Turner v. Safley, 482 U.S. 78 (1987).
During nearly three months at MRRJ in 2017, Firewalker-Fields was unable to engage in Jumu’ah prayer services. One reason was his placement in maximum security. But also the jail “had never received Muslim volunteers or donations, so there was no faith class using the Quran as the central text,” the Fourth Circuit later recalled.
After his grievance seeking the Friday services was denied, he filed suit pro se in federal court for the Western District of Virginia under 42 U.S.C. §1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000 et seq., accusing the jail and Superintendent Jack Lee of violating the constitution by “authoriz[ing] Christian Faith Classes while not allowing or offering Islamic Faith Classes.”
Firewalker-Fields also complained that MRRJ broadcast Christian videos on every TV within the jail every Sunday. Unable to avoid the broadcast anywhere outside his cell, that amounted to an unreasonable ultimatum, he said: “Be Christian or be penalized.”
The district court dismissed his RLUIPA claim because Firewalker-Fields by then had been transferred to DOC, and since the statute allows only equitable relief, that claim was moot. But it also dismissed his claim that the jail violated the Free Exercise Clause, finding the amount and scheduling of Muslim religious activity reasonably related to “security and resource efficiency,” and therefore permissible under Turner. That left only his claim that the jail violated the Establishment Clause. On that claim, the district court also found for Defendants and granted them summary judgment.
On appeal, Plaintiff was appointed pro bono counsel from Ignacio M. Castellanos and Hannah Comeau, two members of the University of Virginia Law School’s Class of 2022. They offered options for the jail to accommodate more Muslim religious activity. But since none had been raised at the district court, the Fourth Circuit said it couldn’t consider them. So it affirmed dismissal of the Free Exercise claim.
Turning to the Establishment Clause claim, the Court said it had long relied on a three-pronged test for government endorsement of religion taken from Lemon v. Kurtzman, 403 U.S. 602 (1971). However, during the pendency of this appeal, the Supreme Court of the U.S. (SCOTUS) put an end to that test with its decision in Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022), holding that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” The parties then submitted briefs on the impact of that decision on Firewalker-Fields’ case.
After that, the Fourth Circuit said it “must allow the district court to grapple with the history-and-tradition test in the first instance” and remanded the remaining claim. But it directed the district court to seek guidance from cases cited in Kennedy, including Town of Greece v. Galloway, 572 U.S. 565 (2014). In that ruling SCOTUS “began by defining a category of activity that was historically understood as acceptable under Establishment Clause principles: ‘legislative prayer,’” and it then moved on to determine whether the challenged practice “fit within the tradition.” So, the Court said, the lower court should “[i]dentify the relevant tradition, then determine whether the challenged practice is in or out.” See: Firewalker-Fields v. Lee, 58 F.4th 104 (4th Cir. 2023).
Back at the district court, Firewalker-Fields picked up appointed counsel from the Richmond firm of Maguire Woods LLP. The parties then proceeded to reach their settlement agreement. See: Firewalker-Fields v. Lee, USDC (W.D.Va.), Case No. 7:17-cv-00400.
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