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Justice Fellowship Religon Behind Bars Handbook 2002

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Reston, VA 20194


© 2002 Prison Fellowship Ministries




Nothing in this Act shall be construed to affect,
interpret, or in any way address that portion of the
First Amendment prohibiting laws respecting the
establishment of religion (referred to in this
section as the “Establishment Clause”). Granting
government funding, benefits, or exemptions, to
the extent permissible under the Establishment
Clause, shall not constitute a violation of this Act.
As used in this section, the term “granting,” used
with respect to government funding, benefits, or
exemptions, does not include the denial of
government funding, benefits, or exemptions.

Religious freedom is the very first liberty listed in
our Bill of Rights and is our most fundamental
In the prison context religious freedom raises
particularly nettlesome issues. Denying religious
liberty could cut off the inmates’ best hope for a
transformed life. However, sham religiosity might
be used as a pretext to undermine institutional
security and safety.
Two important federal statutes—the Religious
Freedom Restoration Act of 1993 (RFRA)1 and the
Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA)2—apply very similar legal
tests to protect the religious freedom rights of
prisoners in federal and state institutions,
respectively. These laws establish a high level of
legal protection for inmates’ practices that are
part of a sincerely held religious belief.
This booklet is designed to explain those rights in
a clear, understandable fashion. If you are a
corrections official who deals with religious
issues on a regular basis, a chaplain in need of
clarification of the law, or a prisoner whose rights
may have been violated, you should review it
We at Justice Fellowship, the public policy
division of Prison Fellowship Ministries, believe
that prisoners’ rights to practice their faiths can
be protected while maintaining prison safety and
security. Federal statutes protecting religious
freedom provide a framework for resolving
inmate requests for access to religious materials
and practices. These statues ensure that:


every inmate can grow in his or her faith;



corrections officials can maintain prison
safety and security; and


most, if not all, of prisoners’ faith claims
will be resolved by administrative process,
thereby eliminating any need for costly
and time-consuming litigation.

This Questions and Answers booklet is designed
to assist religious volunteers, corrections officials,
chaplains, and prisoners in understanding the
rights of prisoners to practice their religion, and
the reasonable limitations on those rights that
may be permissible. It is designed to help
resolve such issues without litigation. Our
experience has shown that sincere religious
convictions of prisoners can be appropriately
accommodated without endangering safety and
security in prisons and without placing any
unworkable administrative burden on prison
We pray that you find this booklet helpful.

(1) by striking “and” at the end of clause (ii);
(2) by striking the semicolon at the end of
clause (iii) and inserting “, and”; and
(3) by inserting “(iv) the Religious Freedom
Restoration Act of 1993;” after clause (iii).

As used in this Act:
(1) the term “government” includes a branch,
department, agency, instrumentality, and
official (or other person acting under color of
law) of the United States, or of a covered
(2) the term “covered entity” means the
District of Columbia, the Commonwealth of
Puerto Rico, and each territory and possession
of the United States;
(3) the term “demonstrates” means meets the
burdens of going forward with the evidence
and of persuasion; and
(4) the term “exercise of religion” means
religious exercise, as defined in section 8 of
the Religious Land Use and Institutionalized
Persons Act of 2000.

Charles W. Colson
Chairman of the Board
Prison Fellowship

Pat Nolan
Justice Fellowship

(a) IN GENERAL—This Act applies to all Federal
law, and the implementation of that law, whether
statutory or otherwise, and whether adopted
before or after the enactment of this Act.
(b) RULE OF CONSTRUCTION—Federal statutory
law adopted after the date of the enactment of this
Act is subject to this Act unless such law explicitly
excludes such application by reference to this Act.
this Act shall be construed to authorize any
government to burden any religious belief.




(1972) and to guarantee its application in all
cases where free exercise of religion is
substantially burdened; and
(2) to provide a claim or defense to persons
whose religious exercise is substantially
burdened by government.

(a) IN GENERAL—Government shall not
substantially burden a person’s exercise of religion
even if the burden results from a rule of general
applicability, except as provided in subsection (b).
(b) EXCEPTION—Government may substantially
burden a person’s exercise of religion only if it
demonstrates that application of the burden to the
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering
that compelling governmental interest.
(c) JUDICIAL RELIEF—A person whose religious
exercise has been burdened in violation of this
section may assert that violation as a claim or
defense in a judicial proceeding and obtain
appropriate relief against a government. Standing
to assert a claim or defense under this section shall
be governed by the general rules of standing under
article III of the Constitution.

(a) JUDICIAL PROCEEDINGS—Section 722 of the
Revised Statutes (42 U.S.C. 1988) is amended by
inserting “the Religious Freedom Restoration Act of
1993,” before “or title VI of the Civil Rights Act of



7 ............................. Scope of Protection
7 ............................. Definition of Religion
10 ............................. Sincerity of Belief
13 ............................. Allocation of Resources
15 ............................. The Strict Scrutiny Legal
18 ............................. Some Particular Religious
Claims Frequently Raised
by Prisoners
23 ............................. Impact of the Prison
Litigation Reform Act on
Prisoner Religious
Freedom Claims
25 ............................. Endnotes
27 ............................. Appendix I
The Religious Land Use
and Institutionalized
Persons Act of 2000
35 ............................. Appendix II
The Religious Freedom
Restoration Act
of 1993 (As Amended)

504(b)(1)(C) of title 5, United States Code, is


This Act may be cited as the “Religious Freedom
Restoration Act of 1993.”

(a) FINDINGS—The Congress finds that:
(1) the framers of the Constitution,
recognizing free exercise of religion as an
unalienable right, secured its protection in the
First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden
religious exercise as surely as laws intended to
interfere with religious exercise;
(3) governments should not substantially
burden religious exercise without compelling
(4) in Employment Division v. Smith, 494 U.S.
872 (1990) the Supreme Court virtually
eliminated the requirement that the
government justify burdens on religious
exercise imposed by laws neutral toward
religion; and
(5) the compelling interest test as set forth in
prior Federal court rulings is a workable test
for striking sensible balances between
religious liberty and competing prior
governmental interests.
(b) PURPOSES—The purposes of this Act are:
(1) to restore the compelling interest test as
set forth in Sherbert v.Verner, 374 U.S. 398
(1963) and Wisconsin v.Yoder, 406 U.S. 205



(A) means:
(i) a State, county, municipality, or
other governmental entity created
under the authority of a State;
(ii) any branch, department, agency,
instrumentality, or official of an entity
listed in clause (i); and
(iii) any other person acting under
color of State law; and
(B) for the purposes of sections 4(b) and 5,
includes the United States, a branch,
department, agency, instrumentality, or
official of the United States, and any other
person acting under color of Federal law.
(5) LAND USE REGULATION—The term “land
use regulation” means a zoning or landmarking
law, or the application of such a law, that limits
or restricts a claimant’s use or development of
land (including a structure affixed to land), if
the claimant has an ownership, leasehold,
easement, servitude, or other property interest
in the regulated land or a contract or option to
acquire such an interest.
“program or activity” means all of the
operations of any entity as described in
paragraph (1) or (2) of section 606 of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-4a).

What kinds of facilities are covered by RFRA and RLUIPA?
Federal and state prisons, jails, juvenile detention
facilities, and facilities for people who are
mentally ill, disabled, retarded, chronically ill, or
handicapped. Hospitals and institutions that are
not run or funded by the government are not

What triggers legal relief?
Anyone confined to a prison or other
government-run or sponsored institution may
raise a claim under either RFRA or RLUIPA
whenever a government actor or employee
places a substantial burden on that person’s
religious exercise.

Are there any prisoners not protected by these federal laws?
It is best to assume that all prisoners are
protected by either RFRA or RLUIPA. The only
exception might be in a state institution that
receives no federal funding of any kind. Prison
administrators should seek competent legal
counsel before attempting to claim that they are
not covered by these laws.

(A) IN GENERAL—The term “religious
exercise” includes any exercise of religion,
whether or not compelled by, or central to,
a system of religious belief.
(B) RULE—The use, building, or
conversion of real property for the
purpose of religious exercise shall be
considered to be religious exercise of the
person or entity that uses or intends to use
the property for that purpose.

Are non-religious activities protected by RFRA or RLUIPA?
No. Only the “religious exercise” of inmates is
protected. If an inmate’s claimed practice is not,
in fact, a religious exercise, it need not be
accommodated by the institution. Neither the
Constitution nor RFRA nor RLUIPA protects
prisoner activities that are motivated by

philosophy, conviction, or worldview unless
firmly rooted in sincere religious faith.3


What is a “religion”?

(a) DEFINITIONS—Section 5 of the Religious
Freedom Restoration Act of 1993 (42 U.S.C.
2000bb-2) is amended:

When confronted with a free-exercise claim
involving inmates, one may question whether the
inmate’s claimed “religion,” is, in fact, a religion at
all. In most instances dealing with Jewish,
Christian, and Islamic traditions, the answer to
that question is not difficult, and correctional
officials should exercise common sense.4 For the
more difficult questions, or those dealing with
faiths that are unfamiliar, it is important that line
correctional staff not determine “on the spot”
whether a claimed practice is or is not a religion.
Instead, the decision should be referred to the
prison administration for appropriate review.

What about religions that are invented by inmates?
Inmates will sometimes contrive “religions” in an
attempt to gain legal protection for activities that
are otherwise not allowed, to make nuisances of
themselves, simply to cope with sheer boredom,
or for other reasons. These contrived “religions”
are not protected. One interesting example of a
court finding that a claimed practice is not a
religion arose in the context of litigation
surrounding the “Church of the New Song,” a
“religion” invented by an inmate in which a meal
of steak and wine was claimed to be a
“sacrament.” The federal courts had little
difficulty in identifying the sham and denying the
prisoner’s claims.5
This case is a good example of an inmate’s
creation of a religion not to worship any deity,
but merely to obtain institutional advantages for
himself and others. Correctional institutions need
not be blind to the unfortunate reality that
prisoners will occasionally attempt to secure

(1) in paragraph (1), by striking “a State, or a
subdivision of a State” and inserting “or of a
covered entity”;
(2) in paragraph (2), by striking “term” and all
that follows through “includes” and inserting
“term ‘covered entity’ means”; and
(3) in paragraph (4), by striking all after
“means” and inserting “religious exercise, as
defined in section 8 of the Religious Land Use
and Institutionalized Persons Act of 2000.”.
(b) CONFORMING AMENDMENT—Section 6(a) of
the Religious Freedom Restoration Act of 1993 (42
U.S.C. 2000bb-3(a)) is amended by striking “and

In this Act:
(1) CLAIMANT—The term “claimant” means a
person raising a claim or defense under this
“demonstrates” means meets the burdens of
going forward with the evidence and of
Exercise Clause” means that portion of the first
amendment to the Constitution that
proscribes laws prohibiting the free exercise
of religion.
(4) GOVERNMENT—The term “government”:


commerce with foreign nations, among the several
States, or with Indian tribes, shall not establish any
inference or presumption that Congress intends
that any religious exercise is, or is not, subject to
any law other than this Act.
(g) BROAD CONSTRUCTION—This Act shall be
construed in favor of a broad protection of
religious exercise, to the maximum extent
permitted by the terms of this Act and the
this Act shall be construed to preempt State law, or
repeal Federal law, that is equally as protective of
religious exercise as, or more protective of
religious exercise than, this Act.
(i) SEVERABILITY—If any provision of this Act or
of an amendment made by this Act, or any
application of such provision to any person or
circumstance, is held to be unconstitutional, the
remainder of this Act, the amendments made by
this Act, and the application of the provision to
any other person or circumstance shall not be

Nothing in this Act shall be construed to affect,
interpret, or in any way address that portion of the
first amendment to the Constitution prohibiting
laws respecting an establishment of religion
(referred to in this section as the “Establishment
Clause”). Granting government funding, benefits,
or exemptions, to the extent permissible under
the Establishment Clause, shall not constitute a
violation of this Act. In this section, the term
“granting,” used with respect to government
funding, benefits, or exemptions, does not include
the denial of government funding, benefits, or


advantages of legal protection for improper,
nonreligious reasons.
Other examples of sham religions quickly
rejected by the courts are found in cases in which
the facade of religion was used in an effort to
justify tax fraud. Typically, in these cases an
individual (sometimes after buying “ordination”
and a “church charter” by mail) would set up a
bank account in the name of the one-person
church, deposit all of his money in the “church’s”
account (claiming a tax deduction for the
“contribution”), and use that account to pay all of
his living expenses. The courts have ruled
repeatedly that these schemes are not religions
and therefore not protected by the First
Amendment.6 On the other hand, a professed
faith that is not traditional should not be
presumed to be a sham.

What if the institution determines that something is not a
If, after careful analysis, an institution determines
that an inmate’s claimed practice is not, in fact, a
religion, the best course of action is to document
in writing the rationale for the negative decision
as completely as possible, including exhibits. In
these situations, the institution should obtain
written requests from the inmate setting forth the
tenets of his religious faith and explaining his
sincerity. This will assist in assessing the inmate’s
request at upper levels of prison administration
and in formulating an appropriate administrative

Are all burdens on religious faith prohibited?
No. In order for RFRA’s or RLUIPA’s protections
to the triggered, the inmate must first
demonstrate that the government imposes a
“substantial burden” on religious exercise.

Congress included the modifier “substantial” to
ensure that the strict-scrutiny standard was not
applied to trivial, technical, or de minimus
burdens on religious exercise. Although trivial
burdens are not “substantial,” the burdened
religious activity need not be compulsory or
central to a system of religious belief as a
condition for the claim going forward.

What if the inmate is insincere in his belief?
Even if the activity in question is, in fact, religious,
the law does not require prison officials to
accommodate it unless the inmate is sincere in
his belief. Congressman Charles Canady, the
principal sponsor of RLUIPA in the U.S. House of
Representatives, stated that RLUIPA’s “definition
does not change the rule that insincere religious
claims are not religious exercise at all, and thus
are not protected.”7
Although government officials may not determine
whether a particular religion is “true” or not,
sincerity is essential for the belief to be protected.
“[W]hile the ‘truth’ of a belief is not open to
question, there remains the significant question
…of sincerity which must be resolved in every

How much should the institution look into the belief to
determine sincerity?
Institutions should carefully review inmates’
claims to determine whether the inmates are
sincere. Everything should be put into writing,
and snap decisions should be avoided. But it is
not necessary that each and every one of the
inmate’s actions be consistent with his professed

Nothing in this Act shall create any basis for
restricting or burdening religious exercise or for
claims against a religious organization including
any religiously affiliated school or university, not
acting under color of law.
in this Act shall create or preclude a right of any
religious organization to receive funding or other
assistance from a government, or of any person to
receive government funding for a religious activity,
but this Act may require a government to incur
expenses in its own operations to avoid imposing
a substantial burden on religious exercise.
Nothing in this Act shall:
(1) authorize a government to regulate or
affect, directly or indirectly, the activities or
policies of a person other than a government
as a condition of receiving funding or other
assistance; or
(2) restrict any authority that may exist under
other law to so regulate or affect, except as
provided in this Act.
EXERCISE—A government may avoid the
preemptive force of any provision of this Act by
changing the policy or practice that results in a
substantial burden on religious exercise, by
retaining the policy or practice and exempting the
substantially burdened religious exercise, by
providing exemptions from the policy or practice
for applications that substantially burden religious
exercise, or by any other means that eliminates the
substantial burden.
(f) EFFECT ON OTHER LAW—With respect to a
claim brought under this Act, proof that a
substantial burden on a person’s religious exercise
affects, or removal of that burden would affect,

(d) ATTORNEYS’ FEES—Section 722(b) of the
Revised Statutes (42 U.S.C. 1988(b)) is amended:
(1) by inserting “the Religious Land Use and
Institutionalized Persons Act of 2000,” after
“Religious Freedom Restoration Act of 1993”;
(2) by striking the comma that follows a
(e) PRISONERS—Nothing in this Act shall be
construed to amend or repeal the Prison Litigation
Reform Act of 1995 (including provisions of law
amended by that Act).
THIS ACT—The United States may bring an action
for injunctive or declaratory relief to enforce
compliance with this Act. Nothing in this
subsection shall be construed to deny, impair, or
otherwise affect any right or authority of the
Attorney General, the United States, or any agency,
officer, or employee of the United States, acting
under any law other than this subsection, to
institute or intervene in any proceeding.
(g) LIMITATION—If the only jurisdictional basis
for applying a provision of this Act is a claim that a
substantial burden by a government on religious
exercise affects, or that removal of that substantial
burden would affect, commerce with foreign
nations, among the several States, or with Indian
tribes, the provision shall not apply if the
government demonstrates that all substantial
burdens on, or the removal of all substantial
burdens from, similar religious exercise
throughout the Nation would not lead in the
aggregate to a substantial effect on commerce
with foreign nations, among the several States, or
with Indian tribes.

this Act shall be construed to authorize any
government to burden any religious belief.

belief system in order to obtain protection. It is
extremely important that prison officials be
mindful of the U.S. Supreme Court’s admonition
Courts should not undertake to dissect
religious beliefs because the believer admits
that he is “struggling” with his position or
because his beliefs are not articulated with
the clarity and precision that a more
sophisticated person might employ
…Particularly in this sensitive area, it is not
within the judicial function and judicial
competence to inquire whether the
petitioner …correctly perceived the
commands of [his] faith. Courts are not
arbiters of scriptural interpretation.9
Prison officials should be cautious in labeling a
particular inmate as insincere in his religious
belief, and consequently not protected.
Erroneous or snap judgments about this can
result in costly litigation. However, courts will
uphold an accurate determination of insincerity if
it is properly documented. For example, in Jones
v. Bradley,10 an inmate failed to request religious
services for 12 years, failed to provide
information about the religion in response to the
institution’s request, failed to file an
administrative appeal after being denied religious
services, and was unclear about his religious
beliefs. As a result, a court found his professed
religious beliefs to be insincere, and his request
for religious accommodation was rejected. Under
RFRA and RLUIPA, sincerity is still a key
ingredient in determining whether a practice is
protected. These statutes do not relax rules
regarding insincerity, but are rather aimed at
enhancing protection for those whose beliefs are
truly sincere.


How do differences among denominations or subgroups affect
sincerity analysis?

(1) is in furtherance of a compelling
governmental interest; and

There are religious individuals who are part of
denominations or subgroups within a faith that
diverge from commonly held beliefs of a
particular religious faith. This is not a justification
to deny free-exercise rights or to make a finding
of insincerity. As the Supreme Court reasons,“the
guarantee of free exercise is not limited to beliefs
which are shared by all of the members of a
religious sect.”11

(2) is the least restrictive means of furthering
that compelling governmental interest.

Must religious practices be “mandatory” or central to the faith in
order to be protected?
No. There is no legal difference between religious
practices that are required by a particular faith
and religious practices that are optional under
that faith. For example, saying the rosary is not a
required practice of the Catholic faith. However,
many Catholics find that this practice, including
the use of rosary beads, assists them in prayer. A
religious practice need not be viewed as essential
in order to be protected.
Under RFRA, the federal courts divided on the
question of whether a religious practice needed
to be “mandated” or “central” to a religious faith in
order to be protected.12 However, RLUIPA’s
statutory language defines the term “religious
exercise” broadly, as “any exercise of religion,
whether or not compelled by, or central to, a
system of religious belief”—and RLUIPA also
amends RFRA to apply this same broad definition
to federal prisoner cases, eliminating any
uncertainty as to whether “compulsion” or
“centrality” of belief might be required.
As with the question of whether something is a
religion, the assessment of whether an inmate is
sincere about his religious faith should be made

applies in any case in which:
(1) the substantial burden is imposed in a
program or activity that receives Federal
financial assistance; or
(2) the substantial burden affects, or removal
of that substantial burden would affect,
commerce with foreign nations, among the
several States, or with Indian tribes.

(a) CAUSE OF ACTION—A person may assert a
violation of this Act as a claim or defense in a
judicial proceeding and obtain appropriate relief
against a government. Standing to assert a claim or
defense under this section shall be governed by
the general rules of standing under article III of
the Constitution.
(b) BURDEN OF PERSUASION—If a plaintiff
produces prima facie evidence to support a claim
alleging a violation of the Free Exercise Clause or a
violation of section 2, the government shall bear
the burden of persuasion on any element of the
claim, except that the plaintiff shall bear the
burden of persuasion on whether the law
(including a regulation) or government practice
that is challenged by the claim substantially
burdens the plaintiff’s exercise of religion.
(c) FULL FAITH AND CREDIT—Adjudication of a
claim of a violation of section 2 in a non-Federal
forum shall not be entitled to full faith and credit
in a Federal court unless the claimant had a full
and fair adjudication of that claim in the
non-Federal forum.


(C) the substantial burden is imposed in
the implementation of a land use
regulation or system of land use
regulations, under which a government
makes, or has in place formal or informal
procedures or practices that permit the
government to make, individualized
assessments of the proposed uses for the
property involved.
(1) EQUAL TERMS—No government shall
impose or implement a land use regulation in a
manner that treats a religious assembly or
institution on less than equal terms with a
nonreligious assembly or institution.
shall impose or implement a land use
regulation that discriminates against any
assembly or institution on the basis of religion
or religious denomination.
government shall impose or implement a land
use regulation that:
(A) totally excludes religious assemblies
from a jurisdiction; or
(B) unreasonably limits religious
assemblies, institutions, or structures
within a jurisdiction.

(a) GENERAL RULE—No government shall impose
a substantial burden on the religious exercise of a
person residing in or confined to an institution, as
defined in section 2 of the Civil Rights of
Institutionalized Persons Act (42 U.S.C. 1997),
even if the burden results from a rule of general
applicability, unless the government demonstrates
that imposition of the burden on that person:

by supervisory staff within the institution, after
careful review of the facts and evidence. It is not
a decision that line staff should make, and it
should be elevated to supervisory levels as soon
as possible.

There are a large number of different religious
faiths represented in the United States.
Correctional institutions are no different from the
outside world in the diversity of faiths
represented. The difference is that the residents
are dependent on the government to provide
opportunities to worship.

Must prison resources be allocated equally among faiths?
No. RFRA and RLUIPA do not require that each
religion obtain the same resources. In the prison
setting, as in the outside world, some religious
groups have a large number of followers, and
other groups have relatively few members. There
is no legal requirement that resources be spread
equally among all religious groups. As stated by
one federal Court of Appeals, religious liberty
protection “guarantees a liberty interest, a
substantive right; [it] does not insure that all sects
will be treated alike in all respects.”13

Are prisons required to sponsor at least some program for every
No. The government’s obligation not to
substantially burden religious freedom is not the
same as a requirement to provide special
programs and facilities for all faiths. The U.S.
Supreme Court has stated that “[a] special chapel
or place of worship need not be provided for

every faith, regardless of size; nor must a chaplain,
priest, or minister be provided without regard to
the extent of the demand.”14

Must the allocation of resources be proportional to size of various
faith groups within the inmate population?
No. Courts recognize that constant counting and
assessment of the religious faiths represented in
the inmate population would present
unmanageable burdens to the reasonable
functioning of the institution. Prisons need not
be in the business of attempting to constantly
evaluate inmates’ religious preferences and adjust
programs to meet these numbers, nor should a
“quota” system be in place for religious programs.
In Thompson v. Commonwealth of Kentucky,15 a
group of Muslim inmates challenged, under the
First and Fourteenth Amendments, the prison’s
practice of providing 6½ hours of prison chapel
time per week to Muslim inmates while allowing
Christian inmates 23½ hours of chapel time per
week. Further, the institution did not provide a
Muslim chaplain, while it did fund three Christian
chaplains, two full-time and one part-time. The
Court of Appeals held that, since the Muslim
inmates were a much smaller group within the
institution, the differential resource allocation
was entirely appropriate.

Can prisoners’ religious practices be temporarily suspended
during lockdown?
Occasionally, in some institutions, it will be
necessary to suspend some religious activities if
the facility is in lockdown or some other
security-related precaution. Such a temporary
suspension would be a result of inmate unrest or
some other urgent condition. This would, in most
instances, be a threat to safety, life, or health, and
the government is allowed to temporarily infringe
upon religious freedom in these situations.

ACT OF 2000
This Act may be cited as the “Religious Land Use
and Institutionalized Persons Act of 2000.”

(1) GENERAL RULE—No government shall
impose or implement a land use regulation in a
manner that imposes a substantial burden on
the religious exercise of a person, including a
religious assembly or institution, unless the
government demonstrates that imposition of
the burden on that person, assembly, or
(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling governmental
(2) SCOPE OF APPLICATION—This subsection
applies in any case in which:
(A) the substantial burden is imposed in a
program or activity that receives Federal
financial assistance, even if the burden
results from a rule of general applicability;
(B) the substantial burden affects, or
removal of that substantial burden would
affect, commerce with foreign nations,
among the several States, or with Indian
tribes, even if the burden results from a
rule of general applicability; or

11. Thomas, 450 U.S. at 715-716.
12. Compare Bryant v. Gomez, 46 F.3d 948
(9th Cir. 1995) with Mack v. O’Leary, 80 F.3d
1175 (7th Cir. 1996), and Jolly v. Coughlin, 76
F.3d 468 (2d Cir. 1996).

However, if there is a less restrictive means to
accomplish the safety interests, such as locking
down only the sectors in which the problem
arose, the institution should accommodate the
other inmates’ religious needs.

13. Butler-Bey v. Frey, 811 F.2d 449, 453 (8th
Cir. 1987).
14. Cruz v. Beto, 405 U.S. 319, 322 n. 2
15. 712 F.2d 1078 (6th Cir. 1983).
16. Boothby and Miller, Prisoner Claims for
Religious Freedom and State RFRAs, 32 U.C.
Davis L. Rev. 573 (1999).
17. Letter from Wallace H. Cheney, Assistant
Director/General Counsel, Federal Bureau of
Prisons, to Rev. Oliver Thomas, Esq., Co-Chair,
Coalition for the Free Exercise of Religion (Nov.
6, 1998).
18. Sasnett v. Sullivan, 197 F.3d 290 (7th Cir.
19. Mockaitis v. Harcleroad, 104 F.3d 1522
(9th Cir. 1997).
20. Love v. Reed, 216 F.3d 682 (8th Cir. 2000).
21. See dissent from denial of reh’g en banc,
Rich v.Woodford, 210 F.3d 961 (9th Cir. 2000).

How strong is “compelling interest” protection?
The “compelling governmental interest/least
restrictive means” test is the highest level of
protection for individual liberty under American
law. Of course, in the context of prisons, which
have powerful needs for safety and security, the
test applies differently than it would outside of
the prison context.

What is a “compelling interest”?
Religious liberty can be restricted if the
institution has a “compelling interest” in doing so.
A compelling interest is an essential need, such as
the protection of life, health, or safety. In the
context of prisons, compelling interests include
protecting the life and safety of inmates,
correctional officers, and visitors. If an inmate’s
religious practice endangers himself or others,
then the practice may be curtailed. For example,
a prison would clearly have a compelling interest
in preventing Sikh prisoners from carrying
ceremonial knives, but would not have a
compelling interest in forbidding inmate groups
from studying the Bible, Torah, or Q’uran together.

What is a “least restrictive means”?
Even if the government proves that it is pursuing
a compelling interest, it may infringe a prisoner’s
religious freedom only if the restriction is the


“least restrictive means” to accomplish its
objective—that is, only if there is no way to
accomplish the compelling interest without
restricting religion. For example, the prison may
have a compelling interest in keeping candles and
matches out of prisoners’ cells, but this does not
mean that worship services using candles may be
banned. It would be less restrictive to allow the
service but keep a count of candles and require
officers to control the matches, so the prison
must follow that course instead.

Does “compelling interest/least restrictive means” mean that the
prisoner always wins?
Certainly not! “Compelling interest” has a
different meaning in prisons than it does outside,
and prison officials will always, at some level,
have a compelling interest in maintaining safety
and security. In many cases, the real issue will be
whether there is a less restrictive means—an
alternative method for prison officials to do their
jobs without interfering with the religious
practices of inmates.

Will strict scrutiny open the door for a flood of prisoner religious
freedom litigation?
Not according to evidence and experience. A
study of the four-year period (1993-97) during
which RFRA applied strict scrutiny to prisoners’
religious claims in state prisons showed that, on
average, the number of reported court decisions
in such cases increased by only 1.5 per state per
year.16 During congressional debate over the bill
that eventually became RLUIPA, the Federal
Bureau of Prisons stated:
[T]he Department of Justice strongly
supported passage of RFRA in 1993 and
opposed an exemption for corrections. The
Department has also vigorously defended

1. 42 U.S.C. §§2000bb, et seq. (see Appendix
II). In Boerne v. Flores, 521 U.S. 507 (1997), the
U.S. Supreme Court held RFRA unconstitutional
as applied to the actions of state and local
government officials. Most commentators and
lower courts agree that under the Boerne
decision, RFRA is still good law with respect to
the federal government.
2. 106 P.L. 274, signed into law by President
Clinton on September 22, 2000 (see Appendix
3. Wisconsin v.Yoder, 406 U.S. 205, 215-19
(1972); Thomas v. Review Board, 450 U.S. 707,
713-718 (1981).
4. Two resources that can be helpful in
determining whether a prisoner’s claimed
religious practice is generally accepted within
the religious tradition with which the prisoner
identifies are the “Handbook of Religious Beliefs
and Practices” by the Washington State
Department of Corrections, and the American
Correctional Association’s self-instructional
course,“Religion in Corrections.”
5. Theriault v. Silber, 453 F.Supp. 254 (D.Tex.
1978), appeal dismissed, 579 F.2d 302 (5th Cir.
6. See, e.g., U.S. v. Jeffries, 854 F.2d 254 (7th
Cir. 1988); Tweeddale v. Commissioner, 841 F.2d
643 (5th Cir. 1988); Page v. Commissioner, 823
F.2d 1263 (8th Cir. 1987).
7. 146 Cong. Rec. E1564 (daily ed.
September 22, 2000).
8. United States v. Seeger, 380 U.S. 163, 185
9. Thomas, supra note 3, 450 U.S. at 715.
10. 590 F.2d 294 (9th Cir. 1979).

to readily dismiss claims that are frivolous,
malicious, fail to state claim upon which relief
can be granted, or those that seek monetary relief
from a defendant immune to such relief. In
addition, the PLRA limits the amount of attorneys’
fees that may be collected by a prisoner who
prevails in a lawsuit.

Can a prisoner file a lawsuit based on emotional harm?
Under the PLRA, prisoners cannot file litigation
for mental or emotional injury, unless they also
demonstrate that they suffered physical injury.

RFRA against challenges since its passage and
continues to do so regarding its application to
the federal government …Although
compliance with the additional requirements
of RFRA certainly places limited additional
administrative burdens on Bureau of Prisons
staff, these burdens have been manageable.17
There is no reason to believe that applying the
similar standard of RLUIPA will cause any more
difficulty for prison administration than RFRA did
at either the federal or state level.

Who has the burden of proving religious liberty violations?
Must prisoners pay filing fees before suing?
Under the PLRA, prisoners are no longer able to
file a case without payment of court filing fees.
Prisoners are required to make monthly
installments from their prison accounts toward
filing fees.

What if a prisoner files repeated frivolous cases?
A prisoner who has had three or more frivolous
cases dismissed is no longer permitted to file
federal lawsuits concerning prison conditions
unless he is in imminent danger of serious
physical injury.

Under RFRA and RLUIPA, the inmate must initially
show that prison officials have substantially
interfered with his religious practice. If that
substantial interference is shown, the burden of
proof shifts to the government to defend its
policies. This “burden shifting” provision is an
important protection for religious freedom.
Typically, when a lawsuit is filed, it is the plaintiff
who bears the burden of proving every aspect of
his case. Under RFRA and RLUIPA, an inmate is
relieved of this responsibility once the inmate
demonstrates that there is a substantial burden on
his free exercise of religion. Congress designed
the laws this way in order to simplify
enforcement of free-exercise claims in situations
where the facts are uncertain and difficult to
prove, or in which essential information is
controlled by the government.

What could happen to a prison that violates RFRA or RLUIPA?
Courts have fairly wide discretion to grant
remedies in response to lawsuits under RFRA or
RLUIPA. Typically, if a prison or prison officials
have violated the religious freedom rights of one
or more prisoners, the remedies could include an


injunction ordering the prison to stop the
violations and an award of financial damages. In
addition, a victorious plaintiff can recover his
attorneys’ fees from the government under either
RFRA or RLUIPA. However, see the information
later in this booklet concerning the Prison
Litigation Reform Act, which places some
limitations on available remedies.


rehearing, stating that “Darrell Keith Rich was a
very bad man …But no man should be sent to his
Maker without being allowed to take the spiritual
steps he considers necessary to prepare for the
event. A decent respect for the humanity of even
the worst among us obligates us to accommodate
such rituals where doing so will not impair
serious governmental interests. This obligation is
not diminished because the ritual does not
involve a minister, a priest or a rabbi.” Under
RLUIPA, the result in this case would likely be
different, and the inmate would have been
allowed to participate in the sweat lodge

I. Wor
ship Ser
vices and Bib
le Studies

Must a prison permit prisoners to meet together for religious
As a general rule, prisons must permit inmates to
meet together on a reasonably regular basis for
worship services; to study the Bible,Torah,
Q’uran, Book of Mormon, or other religious texts;
and to discuss applications of their faith. There
can be appropriate safeguards around these
meetings to protect the prison’s interests in safety
and security, and the meetings may be
temporarily suspended in times of emergency

II. Ev
elism and Outside Ministr
y to

Does the PLRA apply to prisoner religious claims?
In 1996, Congress passed legislation designed to
curtail frivolous filings under federal law by
prisoners. The Prison Litigation Reform Act of
1996, 18 U.S.C. § 3626, 42 U.S.C. § 1997e
(“PLRA”), applies to claims brought by inmates
under RFRA and RLUIPA. The PLRA has
significantly curtailed frivolous litigation brought
by persons in prisons and jails across the country.

What about allowing outside ministry groups into the prison?

What does the PLRA do?

Prisons should not deny ministry and evangelism
visits by outside churches, organizations, and
individuals to minister to the spiritual needs of
prisoners. There can be reasonable boundaries
on the size and frequency of religious events in

The PLRA requires that prisoners exhaust their
administrative remedies prior to filing suit. In
other words, the PLRA requires the inmate to
work within the system to obtain an
accommodation of his religious practice prior to
filing a lawsuit. The PLRA also empowers a court



Must every dietary request be met?
Once again, the institution must accommodate
inmates’ religious diets unless to do so would
infringe upon a compelling governmental interest.
Unless there is a safety, health, or life issue at
stake, every effort at accommodating the inmates
religious needs must be met—assuming, of
course, that the request is the result of a sincere
religious motivation and not merely a desire to
get better food or inconvenience prison staff.

VI. Name Chang

Must institutions recognize inmates by their religious names?
Religious faith sometimes involves changing one’s
name. In particular, many inmates convert to the
Islamic faith while they are incarcerated, which
involves taking on an Arabic name. These name
changes often pose management and resource
issues for institutions. In general, institutions
should recognize inmates by their new names. It
is possible for prisons to implement a “dual-name”
system using an “a.k.a.” designation in order to
honor the prisoner’s religious convictions while
maintaining continuity of identification for
administrative purposes.

eat Lodg

Must prisons allow Native American sweat lodges?
Some Native American faiths use a “sweat lodge,”
similar to a sauna, as a purification ritual. In most
cases, sweat lodges must be allowed. There is a
sweat lodge located at San Quentin State Prison in
California. In a recent case, a Native American on
San Quentin’s death row sought to participate in
a sweat lodge ceremony as a purifying ritual prior
to his execution. The Ninth Circuit denied him
this right, and he was put to death.21 Circuit
Judge Alex Kozinski dissented from the denial of

the prison when necessary to preserve safety and

III. Relig
ious A ppar
el and Gr

Can an institution ban all religious apparel?
No. This type of blanket ban would not be
consistent with the general rules of RFRA or
RLUIPA. Many religious individuals display
religious apparel as part of the fundamental
tenets of their faith. In a pre-RLUIPA case, a
federal appeals court struck down a Wisconsin
prison rule that prohibited prisoners from
wearing religious jewelry such as crosses.18 The
only way that religious apparel can be banned is
if it poses a danger to the life, health, or security
of prisoners, corrections officials, visitors, or the

Must the prison allow yarmulkes or headgear?
Some religious faiths require their followers to
cover their heads with yarmulkes or skullcaps.
Some institutions argue that inmates can hide
contraband in this apparel, endangering
themselves and others. As a result, many
institutions argue these types of headwear should
be banned. If the institution can prove that
yarmulkes pose a danger to health or safety—in
other words, that there is a compelling interest in
banning them—then yarmulkes may be restricted.
The institution, however, would then need to
prove that this was the least restrictive way of
accomplishing its goal. Since inmates can conceal
contraband in other clothing and are subject to
search, an institution’s ban on headgear seems
unlikely to withstand legal challenge.


What about crosses and other items that could be used as
Many religious inmates wish to express their
faiths by wearing religious medallions and other
symbols. This would be determined on a
case-by-case basis depending on the type, size,
material, and other characteristics of the item, the
inmate’s status and history, and the level of
security in the block. The religious apparel would
also be compared with other items in the
institution that are permitted, such as eating
utensils, writing instruments, toiletries, etc. If, for
example, the institution permits inmates to
possess pencils for writing but outlaws a smaller
wooden cross, this regulation would probably not
withstand challenge. However, if a Sikh inmate
wished to possess a ceremonial dagger, and sharp
knives in general are prohibited, the dagger could
properly be prohibited.

May the prison regulate hair length and facial hair?
Some religious faiths require their members to
wear their hair a certain way, which can be
inconsistent with grooming regulations in the
institution. This is also subject to the case-by-case
analysis of the government’s reason for applying
the restriction, and whether there is a less
restrictive way to accomplish the same purpose.
If there is a compelling reason for the hair
restriction and there is no other way to achieve
this purpose, the restriction is appropriate.
Otherwise, the inmate must be permitted to wear
his hair as his faith dictates. Some prisons have
found that use of a computer-altered photograph,
to show what the inmate would look like if he
shaved and cut his hair, is a good alternative to
restrictive hair length regulations.


essional Comm
IV.. Conf

Can confessional communications be secret?
Yes. The Catholic Church requires strict
confidentiality of confessional communications
between priest and penitent. Some prison
regulations require that all conversations
between prisoners and visitors—other than the
inmate’s legal counsel—be monitored. It is quite
likely that cases decided under RFRA or RLUIPA
would overturn these requirements and affirm
the privacy of the confessional.19

V. Special Relig
ious Diets

Must the prison provide kosher food to those who request it?
Many religious faiths require a special diet either
constantly or at specific times throughout the
year. In a recent case, an inmate alleged that the
prison’s refusal to provide food from the prison
facility’s kitchen on Saturday for consumption in
his cell on Sunday violated his free-exercise
right.20 The Court of Appeals held that: (1) the
inmate’s belief system, which he termed the
“Hebrew religion” and which was derived from
his own fundamentalist interpretation of the Old
Testament, was a religion within the meaning of
First Amendment; (2) the prison’s refusal to
provide food substantially burdened the inmate’s
beliefs, which prevented him from leaving his cell
or working on the Sabbath, or eating food
prepared by others on that day, and thus violated
the First Amendment; (3) the option of fasting on
the Sabbath was not a reasonable
accommodation; and (4) the refusal to provide
food could not be justified as having a reasonable
relationship to a legitimate interest. Dietary
requests must be accommodated unless there is a
compelling reason to deny the request and no
less restrictive alternative exists.