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142 / GOD VS. THE GAVEL


overtures “ those who are isolated from family and friends “ and then
they play on their insecurities. The same is true for extremist gangs. John
Pistole, the head of the FBI™s counterterrorism division in 2003, and now
its deputy director, summarized the phenomenon in the prisons like this:

Inmates are often ostracized, abandoned by, or isolated from their family
and friends, leaving them susceptible to recruitment. Membership in
the various radical groups offers inmates protection, positions of in¬‚u-
ence and a network they can correspond with both inside and outside
of prison.1

The fact is that violent religious extremists in prisons have been a prob-
lem for ages, and this is just a new iteration. The United States (with
the exception, perhaps, of the prison administrators with ¬rsthand knowl-
edge) was not paying special attention to the Islamic terrorists when they
struck on September 11. The country as a whole, however, was becoming
increasingly aware of the existence of white supremacists preaching ha-
tred and violence, for example, the Aryan Brotherhood, Ku Klux Klan,
World Church of the Creator, Arizona Aryan Brotherhood, Aryan Circle,
and Aryan Brotherhood of Texas, among others. The two movements “
violent gangs and terrorist recruitment “ are archetypes for chaos and
criminal activity in arenas where security and order is paramount.
For legal purposes, the problem with these groups is not what they be-
lieve, as distasteful as that may be. As in every other venue in the United
States, they have every right to believe whatever they choose. Conduct,
as usual, is the trigger for the law to enter the picture. The challenge for
prison authorities and the larger society from white supremacists or ex-
treme Muslims is that their beliefs lead them to take illegal action “ either
advocating the violent overthrow of the government or taking concrete
steps to that end. Often, their beliefs or membership in violent societies is
proof of likelihood of illegal action. Whether Muslim extremists or white
supremacists are involved, the potential for violence is not hypothetical.


The Aryan Brotherhood: intolerance and violence spread through
the prisons
The Aryan Brotherhood is a particularly scary organization that started
in the California prisons in the early 1960s for the purpose of protecting
THE PRISONS AND THE MILITARY / 143


white inmates from the black and Mexican prison gangs.2 In 1967, the
name Aryan Brotherhood (AB) was chosen; later, it became known also
as the Brand. At ¬rst, the members had to be part Irish to join “ hence
the identifying clover tattoo, often with the religious symbol, 666, the
“mark of the beast,” in the middle. Their other identifying symbol is
the swastika, which designates the wearer as an outlaw. The organiza-
tion originally was intended to help whites, but it eventually devolved
into a racist group interested solely in its own power “ to kill, deal in
drugs, run prostitution rings and extortion rackets, control gambling, and
dominate entire prison populations. They killed with their bare hands in
maximum-security prisons and ordered hits from solitary con¬nement.
Assistant U.S. Attorney Gregory Jessner reportedly assessed the AB as the
“most murderous criminal organization in the United States,” capable of
dividing the prison population into “predators and prey.”3
The AB recruited the strong and the ruthless, and demanded single-
minded devotion to other members even into death. In the 1970s, when
AB members started to be incarcerated for federal crimes in the federal
prisons, the AB™s in¬‚uence spread beyond state prison boundaries. By
1982, the FBI estimated that there were about 100 AB in California™s
prisons and 100“160 in federal prisons, and when they came up for parole
or discharge, they took their gang membership to the outside. Once out,
they were obligated to look out for the interests of the others inside;
otherwise, they would be killed if and when they reentered the prison
system. Those interests included supplying drugs and killing people on
the outside. The AB became so powerful at one point that it was thought
that it controlled elements of organized crime. Its ethos was no different;
an AB instruction manual said the act of killing “is like having sex” and
becomes extremely rewarding, because “it™s a holy cause.”4
An extensive federal investigation of the AB has resulted in numerous
arrests and a trial is expected in 2005. Their power has at least momen-
tarily decimated, but another gang was waiting in the wings, the Nazi
Low Riders, to take over the prison drug trade, the assaults and murders
of black or Latino gang members, and on the outside, authorities saw
a decisive escalation in drug dealing, physical assaults, and home rob-
beries. It took four full-time police of¬cers and four full-time agents from
the FBI plus assistance from the Federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives; the California Department of Corrections; the
144 / GOD VS. THE GAVEL


county sheriff™s department; and three other local police departments to
slow them down.5 The move induced members to drop out of the gang,
and to cooperate. Who knows what other gang lurks in the background,
waiting for its own opportunity to assert its power. There are plenty of
possibilities, including the Latin Kings, Crips, and Bloods.6


The evil within the prisons and the evil on the outside
The history of the AB highlights one of the reasons that it is absolutely es-
sential that violent gangs are suppressed in prison: Many of their members
eventually get out, and when they do, they become a menace to society.
The notorious and horri¬c killing of James Byrd, Jr., in 1998 in Jasper,
Texas, is one example. Three white men picked up Byrd, who was African-
American, in their pickup truck, took him to a secluded area, and used a
chain to attach him to the back of their truck after spray-painting his face
black. Then they dragged him until his body came apart, and he even-
tually died. Russell Brewer and John King were sentenced to the death
penalty, while Sean Berry, the driver, received life in prison. The three of
them had been in prison before, where King and Berry had joined a white
supremacist gang, the Confederate Knights of America. By the time they
got out, each had a number of alarming tattoos, and had become out-and-
out racists. They had been mis¬ts, and now they belonged. And when
they got out, an assistant district attorney explained, “They brought their
prison life out with them.”7 Prison gangs had prepared them to kill Byrd.
Both radical Muslims and white supremacist groups, like the AB, have
confounded standard penological practices. In general, when a group
of inmates becomes trouble, the best way to deal with the problem is
to disperse them through the system. Unfortunately, that can be the
equivalent of blowing on a dandelion puff in the summer, with the
seeds spreading far and wide, and eventually generating more weeds. In
the case of the AB, the dispersal mechanism meant that they expanded
their empire from California to Texas, Illinois, Kansas, Pennsylvania, and
Georgia.
French prisons have witnessed precisely the same phenomenon with
the Muslim extremists, as their numbers have swelled. One inmate told
Le Monde, the Paris daily, that French prisons had “become the cradle
of the future jihad” by 2001.8 The same is true in the United States
THE PRISONS AND THE MILITARY / 145


where Muslims constitute 5.5 percent of the federal prison population
and Islamic conversion appears to be outpacing other faiths.9


Muslim imam recruitment in the military and federal prisons
Muslim chaplain recruitment has been worrying certain sectors in the
government for a number of years now. It is not terribly dif¬cult for an
extremist to fall through the cracks of the system, especially when there
is a shortage of clerics in a particular faith. In the military, of¬cial chap-
lains must be ordained clergy, nominated by their denomination to serve
as a chaplain. They must have completed a postbaccalaureate degree in
theology or a related ¬eld from an approved institution. The graduate
degree must require at least 72 credit hours, and the institution must be
accredited by the American Council on Education or must meet De-
partment of Defense approval guidelines for unaccredited institutions.10
Chaplains must meet all of the other criteria required for commission
as an of¬cer of the armed forces. Chaplains are selected from approved
denominations based on quotas, which are calculated based on the needs
of the services and the general population.11 The armed services, how-
ever, are not always able to ¬ll a need with a full-time chaplain. Under
these circumstances, at least as of 1983 (when the military could not ¬ll
its requirements from the ranks of its chaplains), it relied on auxiliary
chaplains who are appointed on an annual basis and whose function is
purely religious. They must have ecclesiastic endorsement and must be
approved by the chief of chaplains. If auxiliary chaplains are not available,
then the military can contract with individual religious organizations to
provide chaplain services, and these requirements are much looser. The
organization is supposed to be a “recognized religious institution,” and
the institution can appoint the individuals who will provide the services.12
In the prison setting, some claim that the conduits for Muslim chap-
lains were, in fact, keeping moderates out and bringing only radicals
within prison walls. Thus, the prisons™ paid chaplains were in a position
to reach the disaffected prisoners that would be susceptible to their anti-
society and anti“United States rhetoric. Prisoners already are on the
outs with the general society and the government, so these are fertile
grounds for radical Muslim chaplains to recruit. Furthermore, con-
versions of recruits from non-Muslim backgrounds are crucial to the
146 / GOD VS. THE GAVEL


terrorists™ plans, because they are more capable of “blending in” and
have Western passports.13
According to Senator Charles Schumer D.-N.Y., “These imams ¬‚ood
the prisons with anti-American, pro-bin Laden videos, literature, sermons
and tapes.” They “seek to create a radicalized cadre of felons.” The ded-
ication of the terrorists to their cause is single-minded, and the initiation
of imams into the federal prisons was accomplished by a man with con-
nections to the extremist Muslim Brotherhood. Abdurahman Alamoudi
started the American Muslim Council and was responsible for vetting
chaplain candidates for the military from 1993 to 1998, even though he
(1) publicly asserted that the 1993 World Trade Center attackers were
treated “harshly and with vengeance, and to a large extent, because they
were Muslim”; (2) defended Hamas™s “good work” and its need to “resort
to some kind of violence” as well as Hezbollah; and (3) in 1996, spoke to
the convention of the Islamic Association of Palestine in the following
terms:
It depends on me and you, either we do it now or we do it after a hundred
years, but this country will become a Muslim country. And I [think] if
we are outside this country we can say, oh, Allah, destroy America, but
once we are here, our mission in this country is to change it.14
Alamoudi was arrested in September 2003 for serving as an intermediary
between Libyan of¬cials and Saudi dissidents. Although he was not
charged in connection to the alleged plot to kill Crown Prince Abdullah,
the prosecutors referred to it as a reason to give him the maximum
sentence.15 He was sentenced to 23 years in federal prison after “admitting
that he pocketed nearly $1 million and used it to pay conspirators in the
plot, which sources said came close to succeeding before it was broken
up by Saudi intelligence of¬cials.”16
Three organizations have been said to be responsible for placing imams
in the federal prisons: the Graduate School of Islamic and Social Sciences
(GSISS), the Islamic Society of North America (ISNA), and the Ameri-
can Muslim Armed Forces and Veteran Council. The Bureau of Prisons
(BOP) has said that only ISNA has been an of¬cial endorser of imams,
although the GSISS is where most of the Muslim chaplain candidates
have been trained.17
According to the military, the government may not choose clergy,
because of constitutional limitations, and therefore the religious groups
THE PRISONS AND THE MILITARY / 147


choose their own representatives when a chaplaincy is open. Filling Mus-
lim chaplaincy spots without introducing dangerous elements into the sys-
tem has been more dif¬cult than it is with other faiths, because Islam is so
decentralized, which leads the government to rely on the views of “grass-
roots Muslim groups” rather than established leaders to ¬ll the positions.18
Although the groups have denied links with terrorist networks, Profes-
sor of Islamic Studies at Harvard University Ali Asani has said that the
ISNA and the GSISS are “ultraconservative, ultraorthodox,” and out of
touch with the moderate Muslims in the United States.19
And the problem has not been solely con¬ned to federal prisons. In
New York, prison authorities had to boot a longtime chaplain recruiter
because he told the Wall Street Journal that the September 11 terrorists
were actually martyrs. There was even a lawsuit brought by Shiite Muslim
inmates in New York, arguing that moderate imams were not available
to them.
One of the roots of the problem appears to be a shortage of Muslim
clerics. Department of Justice inspector general Glenn A. Fine explained
why a shortage could further the terrorist agenda: “Without a suf¬cient
number of Muslim chaplains on staff . . . inmates are much more likely
to lead their own religious services, distort Islam and espouse extremist
beliefs.”20 After being instructed to investigate the issue, the Of¬ce of the
Inspector General identi¬ed some troubling problems in the recruitment
of chaplains in the federal prisons, which still persisted after the BOP tried
to ameliorate concerns.
The problems identi¬ed were:

r Review of candidates did not include a review of their belief systems
to see if they were inconsistent with prison security policies;
r An inadequate exchange of information between the Bureau of
Prisons and the FBI;
r Since the federal government was no longer accepting recommen-
dations from national Islamic organizations, imam hiring had come
to a standstill, leading to a shortage;
r The BOP was not using imams already in the system to help screen
potential candidates;
r There was inadequate supervision of the messages delivered by
imams;
148 / GOD VS. THE GAVEL


r There was a lack of supervision of Islamic services by BOP employees;
r There was inadequate supervision of imams by correctional of¬cers
within the prisons.21

The ¬rst problem the inspector general identi¬ed, that the government
had not done an inquiry into the beliefs of potential imams, probably
raises constitutional red ¬‚ags for some. Belief, after all, is absolutely pro-
tected under the Constitution. The issue, however, does not involve pure
belief or even pure speech. The relevant question is whether the imam
advocates the violent overthrow of the U.S. government and its people.
That is not mere speech; it is speech directed at inciting illegal action,
and that speech can be regulated. Authorities do not have to wait for the
illegal action to occur before putting a stop to it. Outside the prisons,
such speech is strongly protected unless the violence is imminent, un-
der Brandenburg v. Ohio,22 which expanded the protection for speech
advocating illegal action.
The prison context, however, and its strong potential for producing an-
tisocial or criminal behavior, argues in favor of relaxing the protections
required by Brandenburg. Arguments have been advanced that weigh
against suppressing terrorist speech on websites, because it is impos-
sible to determine whether the danger is imminent.23 Yet, the prison
context increases the likelihood of violence inside or outside the prison
signi¬cantly, and therefore such speech demands monitoring and even
suppression.
Some chaplains have blamed the growth in radical Muslims in the
prisons on inmate as opposed to clerical persuasion. This may be true,
because of the shortage of Muslim clerics. The Federal Bureau of Prisons
has a rule that “inmates are not permitted to lead religious programs.”24
The problem, though, is that when there are inadequate clerics, inmates
must lead religious services if they are to have them at all, and so the
practice has become a staple of federal prison life.
Some might ask whether a government-sponsored chaplaincy is con-
stitutional. It obviously features the government paying for religious wor-
ship. Perhaps it should be privatized. Numerous reasons, though, can be
listed to justify it, not the least of which is that the military cannot operate
securely if it is not evaluating those in close contact with their soldiers.
To privatize the chaplaincy service altogether (and therefore avoid the
THE PRISONS AND THE MILITARY / 149


government payment issue) would present serious problems for national
security, especially in an era of terror.25
Whatever the source of recruitment, there is no question that pris-
ons worldwide have become breeding grounds for the terrorists. Richard
Reid, who was convicted of attempting to detonate an American Airlines
¬‚ight from Paris to Miami with a bomb in his shoe, found Islam through
radical clerics in a British prison, where some have said the amount of
Islamic literature far outpaces Christian literature.26 The French prisons,
with half of their population Muslim, have had terrible problems with
controlling terrorists. And Jose Padilla, who attempted to set off a “dirty”
bomb in the United States, was converted to radical Islam in a Broward
County, Florida, prison, and later drawn into al-Qaeda. Padilla™s case
made it to the U.S. Supreme Court, but they did not reach the merits for
procedural reasons.27
Not only do radical Muslims appear to be recruiting new members in-
side the prisons, but those who are already imprisoned have also tried to
orchestrate further terror from inside, not unlike the Ma¬a don who tries
to arrange a hit while incarcerated. Abdel Rahman, who helped orches-
trate the 1993 attack on the World Trade Center, and was incarcerated
in a federal prison in Rochester, Minnesota, tried to foment more terror
in April 2002. It is alleged that he used his attorney and translator to pass
messages to his followers, including calling for the end to a cease-¬re
in Egypt and new terrorist attacks by his followers in a terrorist network
called the “Islamic Group,” which is said to be responsible for the deaths
of dozens of Western tourists visiting the pyramids at Luxor in 1997.28 The
nature of extremism is such that when the criminal is arrested and put
into prison, he can still generate hatred within the prison walls by writing,
teaching, and inculcating new recruits. While it is a clich´ in the United
e
States that a Ma¬a don might be pulling the strings of his organization
from inside the prison walls, the notion that terrorism can be arranged
from inside is disconcerting, to say the least. It may be surprising, but it
is a fact.


The law of religious accommodation in the prisons
The U.S. Supreme Court has been extremely deferential in the prison
and military contexts, because it has viewed the courts as incapable of
150 / GOD VS. THE GAVEL


assessing security threats and needs regarding prisons or national security.
Thus, they have given the executive branches of the federal and state
governments wide berth to keep order. In the Court™s own words, “˜courts
are ill equipped to deal with the increasingly urgent problems of prison
administration and reform.™”29 In these contexts, the branch most capable
of assessing the issue “ the executive “ has been given the power to do
so, with minimal restrictions. Prison regulations have been subject to
low-level scrutiny, which means the prisoner must ¬rst show that the
law imposes a substantial burden on his religious practice, and then
the prison administrator need only show that the regulation was created
for a “legitimate penological” objective.30 This left room for reasonable
accommodations, like no-pork diets (which are required by a number of
faiths), but it did not force prison authorities to either sacri¬ce security
for any prisoner™s beliefs or divert precious resources to repeated federal
litigation.
That is, until the Religious Freedom Restoration Act (RFRA) and the
Religious Land Use and Institutionalized Persons Act (RLUIPA) were
enacted, which turned generally applicable, neutral prison regulations
into presumptively illegal regulations. A hair regulation applied across
the board in a prison could no longer be presumed to be legal, at least
until the government litigated the issue through the federal courts and
persuaded them that the grooming policy existed for a compelling interest
(security) and there was no other less restrictive way to serve the same
end. It is an expensive process, with questionable utility.


The Religious Land Use and Institutionalized Persons Act
In 2000, President Bill Clinton signed RLUIPA, and launched another
litigation attack on prison authorities. The prison side of RLUIPA re-
ceived so little attention in the form of hearings and testimony that it is
virtually impossible to divine what existing problem it was intended to re-
dress. Two men testi¬ed in support of it: Charles Colson (the ex-con from
the Nixon administration™s Watergate scandal, who then found religion
in prison), who founded the conservative Christian Prison Fellowship
Ministries, and Isaac M. Jaroslawicz of the Aleph Institute, which assists
state and federal prisons to accommodate Jewish inmates. Both empha-
sized how important religion can be to rehabilitation, as they assumed
THE PRISONS AND THE MILITARY / 151


without stating that the religious in¬‚uences helped by RLUIPA would all
be bene¬cial. What they meant was that their religion was good for reha-
bilitation. If RLUIPA could constitutionally only empower those faiths
that in fact further rehabilitation, that would be one thing. But as a con-
stitutional matter, no law may impose denominational preferences. So it
is all or nothing “ expand rights beyond the First Amendment™s require-
ments for the destructive as well as constructive religions, or do it for
neither. Neither Colson nor Jaroslawicz dealt with the myriad problems
posed by expanding free-exercise rights beyond constitutional boundaries
for gangs, white supremacists, rabid racists, or terrorists. Nor did they talk
about the impact on the prison system of subjecting the state and federal
prison systems to the potential for lawsuits from every corner, whether
the faith aided rehabilitation or impeded it. Nor did the members ask.
Neither Colson nor Jaroslawicz provided much in the way of justify-
ing the imposition of strict scrutiny on every prison regulation. Colson
objected to the Supreme Court™s free-exercise jurisprudence that left ac-
commodation to the legislatures, saying, “We want judges to handle these
questions and we want them to use the legal standard” that imposed strict
scrutiny on every prison regulation.31 Of course he did, because then the
believer is the primary focus of the case and the public good is propor-
tionally discounted. At this point, there is no question that the Court has
settled on a free-exercise doctrine that Colson does not approve, and he
has the right to have his own views, but that debate is and should be set-
tled. Religious entities are subject to neutral, generally applicable laws. As
is typical in the circumstances, he did not offer actual proof of any actual
religious suppression in the prisons that justi¬ed RLUIPA™s imposition
on the prisons. Instead, Colson invoked the need for religious liberty in
the prisons as an accepted fact for which no proof to Congress was nec-
essary. Given the members™ extraordinary deference to religious entities
with RFRA and RLUIPA, it was not.
The only “hard” evidence presented was by Jaroslawicz, who testi¬ed
that Jewish prisoners are not adequately accommodated in the prisons.
Some of the examples he raised did not justify an RLUIPA, because
they involved overt discrimination against Jews, which is unconstitutional
under both Religion Clauses. For example, he stated that the Michi-
gan Department of Corrections had banned Chanukah candles at every
prison, because of concerns for ¬re safety. If the rule against ¬re had
152 / GOD VS. THE GAVEL


been enforced against every prisoner, the inmate would not have had a
free-exercise claim, but “smoking, cooking, and votive candles were all
still allowed.”32 Thus, the Free Exercise Clause™s entrenched rule against
singling out religions would be triggered, and RLUIPA was, at best, du-
plicative.
He also criticized the prisons for inadequately protecting Jews from hos-
tile anti-Semitic inmates, of which there are many. He said there were
instances where a Jewish inmate was beaten and then placed in “admin-
istrative segregation,” which means “solitary con¬nement,” for his safety.
But the aggressors continued to “roam free.” Finally, he claimed perva-
sive anti-Semitic treatment from prison chaplains against Jews throughout
the Texas system. All of these examples would be subject to strict scrutiny
under the Religion Clauses, and therefore RLUIPA was not necessary.
But Jaroslawicz did object to at least one neutral, generally applicable
practice in state prisons: the practice of providing accommodation for cer-
tain faiths only at some of the prisons. In other words, not every Michigan
facility offered kosher food, but at least some would.33 His objection was
that the locations of the prisons providing the kosher food were not desir-
able, because they were far from family. But one is hard pressed to fully
understand the objection. Prisoners have never had a right to “choose”
their prison location. While a state may permit them to suggest a prefer-
ence, they are assigned where the state or federal government decides.
This fact was most recently seen in Martha Stewart™s case, where she
had requested a facility close to home in New England, but was assigned
instead to a prison in West Virginia. It is also a puzzling objection in
light of his earlier stated concerns about Jews being isolated and placed
in danger; bringing them together is surely better than dispersing them
so that they are completely isolated from others of their own faith. Essen-
tially, he was demanding RLUIPA be passed, not because there was no
accommodation, but so that Jewish prisoners (and all other faiths) could
insist on having accommodation at the prison closest to their families.
That would be a huge sea change in the law, and one that does not sound
in free-exercise principles, but rather prisoner preferences. If that is why
RLUIPA was needed, it is a slender reed on which to hang such a heavy
and costly burden on the prisons.
One actual con¬‚ict between religious needs and prison security
Jaroslawicz described was the refusal in Michigan to permit the Aleph
THE PRISONS AND THE MILITARY / 153


Institute to ship matzo (unleavened bread) into high-security facilities
during Passover, when Jews are not permitted to eat any other kind of
bread. The system™s general rule was that no “outside” foods were per-
mitted, because they open the door to contraband. At the same time,
the system did not provide the matzos itself, and therefore Jewish in-
mates were forced to violate their religious beliefs during Passover. The
rule passes constitutional muster, because it is neutral and generally ap-
plicable. Under RLUIPA, however, the state would have to explain the
necessity of the prohibition on outside foods, which should not be dif-
¬cult in a high-security prison context, but it would be forced to prove
as well whether its plan was the least restrictive means to serve security
needs. In other words, a court would have the power to second-guess
and micromanage the policy from the courtroom. Forcing the prison to
buy the matzos is likely a failed effort because prisons (and therefore
the public) cannot be expected to bear the cost of an inmate™s religious
observance.
Thus, RLUIPA would drive the court to engage in the essentially leg-
islative process of determining whether there is any way to get the matzo
to the prisoner without undermining the security concerns. Just to take
the role of the court for a moment, i.e., assessing accommodation in the
absence of facts or expertise, one possibility would be to make matzos
at that time of year available through the commissary, so that an inmate
could purchase them, while the food would have come into the prison
from ordinary delivery channels. Could a court enjoin the prison to do just
that? RLUIPA seems to say so. Without further facts, though, it is hard to
know what the right accommodation solution should be, which is almost
always the case when the issue is decided in a courtroom rather than the
legislature. Better for the legislature to gather and then weigh the facts.
Others, however, were against the prison provisions of RLUIPA. Unlike
the land-use side of RLUIPA, where no government of¬cial or land-use
expert was permitted to testify against RLUIPA or even to explain the
operation of local land-use law vis-` -vis churches, there was a semblance of
a
balance and fair-minded consideration of the issues on the prison side,
as abbreviated as it was.34
Ohio solicitor Jeffrey Sutton (now a federal appellate judge) was
permitted to testify that prisons should have been exempted from the
Religious Liberty Protection Act, the predecessor bill to RLUIPA. The
154 / GOD VS. THE GAVEL


Ohio Corrections Department™s experience with RFRA led him to offer
the following: The RFRA “cases included such bizarre claims as demands
for recognition of the right to burn Bibles, the right to possess and dis-
tribute racist literature, the right to engage in animal sacri¬ces, and the
right to group martial arts classes,” but it also forced prison authorities to
spend a great deal of time on issues that had been settled in the courts
already.35
Even more troublesome, though, was the fact that prisoners “exploited”
RFRA to “insulate illicit, even dangerous, activities from of¬cial scrutiny.”
Nationwide, “white supremacist inmates suddenly converted to obscure
or eccentric religions, then demanded that of¬cials recognize their re-
ligious gatherings and practices under RFRA . . . and recruited ˜religious
volunteers™ to bring drugs and prostitutes into Lorton prison” “ a District
of Columbia facility located in Virginia. He cited the example of the
Wyoming prison that permitted Luciferian inmates unsupervised group
services to burn Bibles and hymnals, which led to signi¬cant smoke dam-
age throughout the facilities. Sutton also pointed out that RFRA forced
chaplains to shift their focus from providing religious services to litiga-
tion, because the inmates came to view the chaplains as the “enforcers”
of RFRA, rather than a spiritual resource.36 His implicit point was that
prisons are already ¬nancially strapped and under siege from serious
internal security problems. To add RLUIPA on top made no sense to
him.
When RFRA was under consideration, Sen. Harry Reid (D-Nev.) of-
fered an amendment on the Senate ¬‚oor that would have prohibited
the application of RFRA to incarcerated individuals, in part because he
believed prisoners had become far too litigious. But it was too late in
the process, which meant RFRA was enacted without the exception. He
later expressed concerns regarding the impact of RLPA and RLUIPA on
prisons, because corrections of¬cers had contacted him and expressed
sincere concern about their own and the public™s security:

AFSCME recently alerted their corrections of¬cer membership that
this legislation was coming up for a vote, and was deluged with phone
calls from members expressing their distress about how this bill might
affect their ability to maintain security and protect the safety of the
public. As you can well imagine, getting inmates to comply with security
THE PRISONS AND THE MILITARY / 155


measures in prison is no easy task. Many prisoners will use any excuse
to avoid searches and to evade security measures instituted to protect
prison personnel and the general public from harm.37


Sen. Strom Thurmond (R-S.C.) expressed similar concerns in testi-
mony following RLUIPA™s passage by Congress but before President
Clinton signed it into law on September 22, 2000, and added that
“[I]nmates have used religion as a cover to organize prison uprisings, get
drugs into prison, promote gang activity, and interfere in important prison
health regulations. Additional legal protections will make it much harder
for corrections of¬cials to control these abuses of religious rights.”38 De-
spite these legitimate concerns, the members did not inquire further; no
study was done to address the issue, no state prison administrator called to
testify to inject some facts into the process, and apparently no concern on
the part of the vast majority of the members was expressed. It is a perfect
example of the phenomenon where Congress resolutely serves religious
entities by deferring to a religious lobbyist (Colson) without taking into
account the questions implicating the larger public good “ and the many
other interests implicated by these questions.
Unbelievably, Reid dropped these concerns and supported RLUIPA on
a promise that Sen. Orrin Hatch (R.-Utah) would hold hearings a year
after its enactment, to which state of¬cials would be invited to assess how
it had worked in practice. Anyone who knows anything about legislation
knows that once a law is passed, it is virtually impossible to get it repealed,
so the promise of postenactment hearings seems hardly adequate to Reid™s
concerns. He was also molli¬ed by the notion that he and Senator Hatch
would ask the General Accounting Of¬ce to conduct a detailed study
of its (and the Prison Litigation Reform Act™s) effect on prisons.39 Not
surprisingly, neither was ever done. September 11 intervened, and the
prisons are still being sued by inmates with a dizzying array of religious
requirements. The Supreme Court will decide by July 2005 whether it is
constitutional. (It™s not.)
It appears that, but for Colson (and Jaroslawicz to a lesser extent) and
his desire to position Prison Fellowship Ministries to proselytize con-
servative Christianity in prisons across the country, RLUIPA might only
have addressed land use, and not prisons. What is desperately needed
156 / GOD VS. THE GAVEL


in Congress is some member who can rise above religious lobbying to
secure the larger good “ members that at least ask if there is another side
to an issue raised by a religious entity, without being its servant.


The challenge of accommodating religious prisoners
Prison wardens welcome peaceful religions within their walls, because
they can assist with rehabilitation.40 The same cannot be said for white
supremacist religions that preach violence or Islamic fanatics, advocat-
ing the end of the United States. Given the high percentage of religious
believers in the United States, prison of¬cials are in all likelihood reli-
gious themselves, so the notion that there is antireligious sentiment in the
prisons is hard to prove. The problem with these groups is their threat to
security and order. New York City corrections commissioner Martin Horn
nicely captured the dif¬culties faced by prison authorities: “The vast ma-
jority of inmates have genuine faith needs, and the professional standards
of prison and jail administration call for the respect of honestly held faith
beliefs. But there are no lack of examples of inmates who will misuse it.”41
For those not familiar with prison administration, the requests for reli-
gious accommodation by prisoners may seem innocuous, taken one by
one. This fellow needs a kosher diet, and that woman needs a cruci¬x,
while another needs long hair. And these issues typically come up in
the context of legal action, so it appears that it is a simple request by a
sincere individual or small group of individuals. The global impact on
the prisons is lost in the context of the particular case, but that larger
context is what the prison administrator must take into account. Prisons
can only operate successfully where each prisoner perceives he or she is
being treated just like any other prisoner, where discipline is tight and
predictable, and where the routine is set. And it is not just a problem
of logistics; it is expensive for a signi¬cant number of inmates to be ac-
commodated, because it requires at the least additional guards to cover
various locations within the prisons.
How much trouble can religious accommodation be? The answer is
that it can be enormously problematic, when one multiplies religions, re-
ligious practices, and the individual variations on each and then sets them
in the context of a prison that must ensure security and order within a
THE PRISONS AND THE MILITARY / 157


typically tight budget. (The First Amendment contemplates the absolute
right to believe, which has no “mainstream religion” or “settled religious
practice” element, so the breadth of religious belief is huge.) The follow-
ing is a list of some of the requested accommodations in state and federal
prisons to give the reader a sense of the scope of the issue. It is far from
inclusive.

Accommodation request Religion
Diet restrictions
r Vegan African Hebrew Israelite
r Vegetarian diet Buddhist
r Protein tablets Buddhist
r Vegetarian diet Jehovah™s Witness (not required for
most)
r Vegetarian (no meat/eggs) Hindu
r Kosher diet— Orthodox Jew
r Diet “ no pork; halal† meat Muslim
only
r No pork or shell¬sh Seventh-day Adventist
r Dairy vegetarian most of year; Ethiopian Orthodox Tewahido Church
fast of milk and water
r I-tal diet‡ Rastafarian
r Biblically derived diet§ Nation of Islam
r Fish and unleavened bread Catholic
during Lent
r Steak and sherry every Friday CONS (Church of the New Song)



A kosher diet basically prohibits pork and shell¬sh, and the consumption of milk
and meat together.

“Halal” meat has been killed according to religious rituals. Kosher meat satis¬es the
halal requirement.

Fresh, unprocessed fruit, vegetables, ¬sh, juices and grains.
§Permits whole wheat or rye bread; fruit, and fruit pies with brown sugar and whole

wheat ¬‚our; navy beans, soy beans, kale, peas, collard greens, turnip greens, sweet or
white potatoes, some ¬sh, and cream cheese. No lima beans, pork, fried or hard-baked
foods, cornbread, freshly cooked bread, pancakes and syrup, nuts, halibut, cat¬sh, carp,
eel, oyster, lobster, crab, clam, shrimp, and snail.
158 / GOD VS. THE GAVEL


Accommodation request Religion
Grooming/dress restrictions
r No haircut Hindu, Native America
r No haircut; beard Sikh
r Beard Muslim
r Muslim cellmate Muslim
r Muslim head covering in Muslim
prison yard (already allowed
in prayer services)
r Dreadlocks and hat Rastafarian
r Beard longer than allowed Rastafarian
r Headband Native American
r Metal cross Protestant
r Religious medal Odinis
r Bow ties during religious Nation of Islam
service
r Tallow-free soap and Buddhist
conditioner
r Sidelocks Orthodox Hasidic Jew
r Worship in the nude Technicians of the Sacred (Neo-African
faith)

Literature
r Racist literature Christian Identity, Church of the
Creater
r Noncensored religious texts Hebrew Israelite Faith
r Texts Taoism
r Religious materials Moorish Science Temple of America
r Access to banned literature Asatru, Church of Jesus Christ
Christian, Wiccan, Satanist, Nation of
Islam
r Scripture “ NPKA Book of Odinist
Blotar
r Racist literature, redacted Hebrew Israelite
r Satanic Bible Satanist
r Aryan Nation literature Aryan Nation
r Religious comic books Fundamentalist Christian
THE PRISONS AND THE MILITARY / 159


Accommodation request Religion
Literature (continued)
r Literature and numerological Nation of Gods and Earths, or Five
devices Percent Nation (roots in Black Islam)
r Bible “ speci¬c version Variety of Christian denominations

Miscellaneous
r Evergreen tree, sauna, charm Odinist
necklace with Thor™s
hammer, small stone altar in
cell, cauldron, drinking horn,
branch, Viking-type swords
made of soft wood
r Sweat lodge— Native American
r Wild-bird feathers Native American
r Permission to cast Wiccan
spells/curses
r Tarot cards Wiccan
r Proper disposal of blood after Jehovah™s Witness (fundamentalist)
drawn for medical testing
r Refusal to take tuberculosis Rastafarian, Muslim
test
r Placement only with Christian Separatist Church Society
Caucasians
r Worship separate from Sunni Shi™ite Muslims
Muslims
r Worship separate from Sunni Muslims
Shi™ites
r Muslim cellmate Muslim
r Right not to be classi¬ed as a Five Percent Nation
Security Threat Group,
which designates violent
prisons gangs
r Medicine pouch Native American Church

A building made of branches in which rocks are heated so that participants have a
sauna-like effect, which is a location for medicine and pipe ceremonies and prayer.
160 / GOD VS. THE GAVEL


Accommodation request Religion
Miscellaneous (continued)
r Spiritual necklace Native American Church
r Weekly Jumu™ah prayer Muslim
r Prayer oil (in or outside cell) Muslim
r Candles, incense Muslim
r Religious talismans Muslim
r Bible burning Luciferian
r Writing paper, newspaper, Wotanist
more access to spiritual
adviser
r Menorah for Hanukah Jew
r Te¬llin— Orthodox Jew
r Not ¬lling out standard form to Orthodox Jew
obtain kosher meal
r Wine for communion Catholic
r Personal counseling, worship Pentecostal
service, Bible study, ministers
r Prayer rug Muslim
r Spiritual adviser, well-rounded Fundamentalist Christian Separatist
research library in cell, Bible
in yard for proselytization
r Denominational pin, shirt, Christian Identity Church
separate services
r Cleric from outside prison to Muslim
conduct services
r Weekly group meetings Atheist
r Oils, powders, incense, Voodoo/Egyptian Freemasonry
candles, religious Botanicals,
stones, Talisman, Charm bags
r Better Protestant programming Baptist
r Observance of Muslim Nation of Islam
holidays not recognized by
Sunni/Shi™ites


Small leather boxes with prayer scrolls inside that are tied with leather straps to the
foreheads and forearms while praying.
THE PRISONS AND THE MILITARY / 161


Accommodation request Religion
Miscellaneous (continued)
r Embrace and kiss wife Christian
r Change of name after being Universal Life Church
born again
r Kirpan (knife) Sikh


Most prisons try to accommodate at least some religious diets “ within
the parameters of affordability, good nutrition, and feasibility. Typically,
there will be a kosher option, a vegetarian option, and/or a no-pork op-
tion. The ¬ne differences between the different versions of vegetarianism
are nearly impossible to match. Some Hindus will not have any food
resulting from an animal™s suffering, which means no meat, eggs, animal
by-products, or honey, while dairy products are acceptable. Jains add to
the Hindu diet a restriction on any food resulting from the suffering of
plants, for instance, root vegetables like potatoes, and microorganisms.
For some Buddhists, eating meat is forbidden, and the larger the ani-
mal, the worse the karma, but ¬sh is lower on the animal kingdom scale
and therefore may be eaten. The Seventh-day Adventist believer is not a
vegetarian per se and will not eat pork or shell¬sh, while Muslims tend
not to eat pork. Putting together a nutritionally balanced diet for all of
these beliefs at once is quite challenging, to say the least. That is why
some systems concentrate certain faiths in certain prisons so that they
can accommodate that group as ef¬ciently as possible.
Grooming policies also come into con¬‚ict with a fair number of reli-
gious practices. Typically, prisons regulate hair length and beard length,
because both, if long enough, can be used to hide contraband, includ-
ing drugs and weapons. The rule is obviously passed for a compelling
interest “ security in the prisons. A number of faiths are burdened by
such a regulation. Native Americans often believe that hair should only
be cut in sorrow. Rastafarians believe in wearing long dreadlocks and
beards. The Muslim faith requires men to have beards. Like long hair and
beards, head coverings also are convenient places for drugs and weapons,
and similarly regulated.
If the grooming policy is applied across the board, it is constitutional,
despite the burdens on religious believers, under the reasoning of both
162 / GOD VS. THE GAVEL


Employment Div. v. Smith and Turner v. Sa¬‚ey. Prison authorities get into
trouble, though, if they do not apply the principle evenhandedly. If the
policy can be abridged by one prisoner, the claim to security has lost a
great deal of its force.
Religious objects are a very dif¬cult category for the prison authorities
to handle. The key problem is that prisoners are unbelievably clever at
crafting just about anything in their cells into a weapon. The metal from
crosses and cruci¬xes can be shaped, if one spends enough time, into
a shank. One or two headbands can be an effective garrote. Whether
wood or metal, a menorah can be fashioned into an offensive weapon.
And the sweat lodge requested by some Native Americans involving a
¬re within a structure built with branches, with ¬re™s obvious potential
for harm, has been accommodated, though it requires additional guards
and ample grounds on which to place it. When a Wyoming prison gave
Satan worshipers “ called Luciferians “ a Bible and a match, the ritual
burning of the Bible caused smoke damage throughout the prison.42
Space requirements “ the need for a place for worship, or to be near
or away from certain other groups “ can be especially dif¬cult when the
variety of religions in the prison reaches a certain quantum of faiths.
Prisons have to scramble to ¬nd enough worship spaces, appropriate
rooms for each particular group, and additional guards.
Each of these practices can be the basis of a federal lawsuit under
RLUIPA. So long as the inmate is sincere about the belief, the court
must consider the request for accommodation of the prison™s regulation
under a standard that presumes that regulation is illegal.
These sincere requests are dif¬cult enough, but the prisons also face an
uphill battle against the creativity, some would say cunning, of prisoners
in coming up with new “religions.”


New religions in prison
One of the more serious problems for prisons facing broad religious liberty
guarantees for their inmates, which admittedly can also be entertaining, is
that a signi¬cant number of prisoners are sorely tempted to claim religious
privilege for what is, in fact, a secular desire. It is not out of the realm of
possibility that a Christian inmate who thinks the kosher food looks better
than what he was eating will insist that he has had a sudden conversion
THE PRISONS AND THE MILITARY / 163


to Judaism. Or that a prisoner will claim that his religion requires an
exercise mat and free time every day at 4:00 p.m. But the prize has to go
to the Church of the New Song (CONS).
The CONS was founded in the early 1970s by a federal inmate, Harry
Theriault, who said it was a “game.” And what a game it is. This “religion”
requires a prisoner to be served Harvey™s Bristol Cr` me and steak every
e
43
Friday at 5:00 p.m. As one can imagine, it quickly gained recruits. This
is a classic case of a group testing the waters with insincere claims of
religious devotion. Common sense should have sent their free-exercise
claims packing.
Unfortunately, though, their original claims aired in the 1970s when
the Supreme Court™s free-exercise jurisprudence bent over backward for
believers to the detriment of the public good, and a court actually held that
CONS was a religion deserving protection under the First Amendment.44
It is, to be sure, an embarrassing moment for the U.S. Court of Appeals
for the Eighth Circuit, which reasoned as follows:

After careful consideration of the entire record we are satis¬ed that the
district court™s judgment that The Church of the New Song is a religion
within the ambit of the First Amendment is based on ¬ndings that are
not clearly erroneous and that no error of law appears. Further there
is insuf¬cient evidence in this record to establish [the] contention that
[CONS™] beliefs are not sincere and genuinely felt. It also appears that
[CONS] have not been allowed a fair and meaningful opportunity
to freely exercise their religion in the same degree as other inmates,
Protestant and Catholic.45

The good news (if one thinks of common sense as a virtue) is that another
court refused to fall for the legal ploy, and held that:

The beliefs professed by [CONS] are not sincerely held and do not in
their own scheme of things constitute a ˜religion™ nor are they sincerely
of a ˜religious™ character. . . . The so-called ˜Church of the New Song™
does not meet the criteria adopted by this Court in its analysis above to
entitle it to First Amendment protection as a religion. It is clearly a sham
designed and calculated to obtain favored treatment for its members
incarcerated in various prisons and has no measurable following outside
Federal Penitentiaries.46

Hear, hear.
164 / GOD VS. THE GAVEL


Thirty years after the Eighth Circuit recognized CONS as a religion,
the church brought a new free-exercise claim. The lawsuit was brought
when prison authorities at the Iowa State Penitentiary in Fort Madison,
Iowa, refused to deliver trays of food for the CONS™ “celebration of life”
to inmates who were in lock-up during the banquet. Apparently, the
other believers were able to eat their “celebration-of-life” feast together,
so the only CONS believers at issue were in lock-up. In any event, a
federal lawsuit was ¬led on behalf of these locked-up inmates who were
denied participation in the “celebration of life.” Thirty years into this
charade, the judges of the Eighth Circuit were bound by the previous
decision, but they seemed to have gotten some perspective. Judge Pasco
M. Bowman, writing the opinion for himself and Judges William Jay Riley
and Lavenski R. Smith, had to “suspend disbelief” to get through the
case.47
When prisoners create religions, there can be some chaos in the in-
stitution of their traditions. CONS is an excellent example. During the
Iowa litigation, at ¬rst, the “celebration of life” (1) was a spring festivity,
saluting nature™s renewal of life; (2) then it was a party to celebrate the
day CONS was founded; (3) and then it was the same as the Sacred
Unity Feast mentioned in their religious text, the Paratestament. The
court perused the Parastatement carefully, and was forced to conclude
that it could not be the same as the Sacred Unity Feast, because the lat-
ter only happens after “the hundred and forty-four thousand Revelation
ministers have been sealed as prophesied.” Since it was “apparent” to
the court that the hundred and forty-four thousand Revelation ministers
had not yet been sealed,” no Sacred Unity Feast could be held.48 Further
perusal of the scripture led the court to conclude that this was not a reli-
giously mandated celebration and therefore no free-exercise rights would
accrue.
But on the off chance that the Supreme Court might consider reversing
its reasoning, I suppose, the court persevered to explain why, even if the
celebration were religiously mandated, the prison authorities could refuse
to deliver the trays of food to lock-up. The penitentiary argued that there
was no way for it to prevent contraband from traveling in or on the trays, in
part because health regulations prohibited them from handling the food.
In fact, CONS helped to make the penitentiary™s case, because before
the celebration of life denial, CONS members “sent contraband into the
THE PRISONS AND THE MILITARY / 165


lock-up unit through a variety of illicit methods.”49 So the court had to
conclude the state had more than carried its burden, and, besides, the
“celebration-of-life” feast itself had no particular dietary requirements, so
the deprivation of the trays did not affect the CONS™s beliefs.
It is a silly “church” and a funny case, to be sure. But it is also deeply
troubling. The CONS™s testimony regarding the meaning of the so-called
“celebration of life” was confused and muddled, probably because they
were making it up as they went along. When that ¬rst court declared them
a legitimate, protected religion, they won. They successfully played the
system. The fact that they won recognition as a religion from a federal
court taught them that conning the correctional system works, and that
the Constitution protects the con game. That™s some rehabilitative mes-
sage, and it shows the folly that results when courts are as muddle-headed
about religion as legislators often are. Demanding proof of sincerity about
religious belief and practices is not antireligious, as perhaps the ¬rst court
believed; rather, it keeps the system honest, the results just, and the First
Amendment legitimate.


A new phenomenon: Religious prisons
Two cultural forces have come together to create “religious prisons” in
the United States. First, there has been a persistent belief that religion, as
a whole, is good for people, and inmates in particular.50 There appears
to be an increasing amount of evidence that suggests that some religious
programming in the prisons can reduce the recidivism rate.51
Second, certain religious entities have gained remarkable power in
the political sphere, which leads politicians to desire to be identi¬ed
with religious projects and to grant religious entities what they request.
The combination of a Pollyanna-like attitude regarding religion and re-
ligion™s political power make it an opiate for elected representatives. It is
an addictive mix that paralyzes their common sense and disables their
otherwise natural cynicism about lobbyists in general. When Chuck
Colson importuned a Republican-dominated Congress to include pris-
ons under RFRA and RLUIPA, the members were all too happy to
oblige. At one point, there was even a rumor that the goal was to get
RLUIPA passed by Easter! To state the matter modestly, the tempta-
tion to make religion a centerpiece of the prison experience is quite
166 / GOD VS. THE GAVEL


strong in the United States at this time. These religious prisons of-
fer mass accommodation, at least for some believers, but especially
Christians.
There are two types of religious prisons. First, there is the Iowa model,
which has been tried in Texas, Kansas, and Minnesota as well, where,
Colson™s Prison Fellowship Ministries, employing its “Christ-centered”
approach, takes over a wing of a prison at state cost. Second, there is the
Florida model, where the system designates certain prisons as religious,
gives inmates a choice to go and a choice to leave, and the religious activ-
ities are funded by private, religious entities. As a constitutional matter,
the former is on much shakier ground than the latter.
The Iowa experiment is Christian at its core. Prison Fellowship Min-
istries takes over a wing of a prison and sets up shop, hoping to convert as
many prisoners as possible. A report on National Public Radio indicated
that they call the cells the “God Pod,” and the Warden describes them:
“The doors are wooden. One of the differences you notice, the doors are
unlocked as you come in. Cell doors are unlocked. They can come and
go by their schedule.” The NPR Reporter then elaborated on the system:
“The men can stay up longer. They see more visitors. But they also have
a more disciplined regimen: no TV except for the news, up for prayer and
worship at 6 a.m., Bible study several hours a day, as well as vocational
training, workshops, mentoring programs, all by Christians. It is, in fact,
a virtual drenching in evangelical Christianity.”52 The cost of the extra
programming has been defrayed by the state revenue from all inmates™
phone calls.
Iowa is already ¬ghting lawsuits brought by the ACLU and another by
Americans United for the Separation of Church and State.53
The Iowa system is reminiscent of the attempts to get Christian prayer
back into the public schools; a nostalgic attempt to create a Christian
country in the context of settled and contrary constitutional principles.
Those principles do not permit the government to single out any one
religious viewpoint for good or for bad, or to have the effect of advancing
religion, or of government endorsement of religion, or excessive entan-
glement of church and state. One could even say that in a prison context,
where privileges and open cell doors are rare, and therefore a tremen-
dous incentive to do whatever it takes to get them, it is akin to coercion to
become Christian (or at least to participate in Christian activities). In an
THE PRISONS AND THE MILITARY / 167


interesting twist, the organization that fought for strict scrutiny of all
prison regulations will have its sectarian program in the prisons subjected
to strict scrutiny as well. The difference is that the prison regulations were
neutral and generally applicable and therefore did not deserve searching
judicial review, while there is every reason to assume that a state prison
with a “God Pod” paid for by the state is probably unconstitutional. In
the words of the Supreme Court, “when we are presented with a state
law granting a denominational preference, our precedents demand that
we treat the law as suspect and that we apply strict scrutiny in adjudging
its constitutionality.”54
Then there is the Florida model, which is being tried or considered
in roughly a dozen states, where certain prisons have been designated
as “faith based,” and theoretically, all faiths are welcome. Inmates who
have a certain level of good behavior within the system as a whole are
eligible to go to the faith-based alternative for the last 36 months of their
incarceration. While there, they are taught basic life skills, like writing a
resum´ and opening a checking account, by religious volunteers, and in
e
the evenings, there is frequent religious programming. In addition, every
morning, there are Christian devotions available to whoever desires to
attend.
The Florida system is distinctive from the Iowa model in that the
rehabilitative programming and staf¬ng is supplied by religious groups
from outside the prison. As one reporter noted, the Florida system has
turned President George Bush™s faith-based initiative “on its head.”55
Instead of the government providing ¬nancial support for religious
mission, the religious groups are giving money and services to a state
system. This is an especially interesting phenomenon in light of Univer-
sity of Arizona sociology professor Mark Chaves™s book, Congregations
in America, which documents that religious groups spend relatively little
on social services. In his words, “[F]or the vast majority of congregations,
social services constitute a minor and peripheral aspect of their organi-
zational activities, taking up only small amounts of their resources and
involving only small numbers of people. We fundamentally misunder-
stand congregations if we imagine that this sort of activity is now, was ever,
or will ever be central to their activities.”56 So the Florida experiment,
with its intensive labor from church members and fairly signi¬cant costs,
does seem to break new ground.
168 / GOD VS. THE GAVEL


Like other religious phenomena in the United States, it is easy to be
led down the path of thinking that the religious program is all to the
good. There is an underbelly to the program, however, and that is that
minority religions are not getting adequate attention. It is almost exclu-
sively a Christian system, and in Florida, at least, it seems predestined to
be a Christian system. It is at the mercy of the believers who live near
the prison, and therefore any prisoner from outside the community who
does not share its faith may well receive lesser religious instruction and
worship than the others. The lopsided nature of the program in Florida
has been accentuated by the fact that last year Florida slashed funds for
chaplains and staff dramatically, making it ever more dif¬cult to serve a
wide variety of believers. The combination of the dependency on the lo-
cal believers and the state™s reduction in its professional chaplaincy make
it all too likely that one prisoner has rightly assessed the situation: “You
know, in the manual you would read that all religions are reverenced,
but it™s understood it™s under Christian dictatorship.”57 The details are
troubling: only one visit from a Muslim cleric in a year, while everyone is
urged to participate in the Christian so-called “devotions” on a daily basis.
Thus, the ACLU of Florida™s executive director may well have a point:
Governor Jeb Bush is “willing to improve conditions in prison facilities
only for those inmates that are willing to accept religious proselytizing.”58
Like the Iowa model, though, the rational prisoner desires the place-
ment, because there is more liberty, more education, and even more
entertainment “ so members of smaller faiths may be coerced “ certainly
induced “ into signing up for a program that is predominantly Christian.
Some of those from minority religions do not complain about the faith-
based environment, though, because it is simply quieter than the average
prison.59
With the seemingly intractable problems in most prisons, the temp-
tation to treat the religious prisons as a cure-all is strong. Such wishful
thinking probably accounts for the simultaneous reduction in the size of
the chaplaincy at the same time the programs opened. But prison systems
cannot suddenly dispose of sensible criminology principles, according to
most experts. For example, as important as constructive religion may be
in reducing the recidivism rate, religious programming should not re-
place other factors that are also known to help, including counseling,
THE PRISONS AND THE MILITARY / 169


drug and alcohol abuse treatment, and job instruction. One critique of
these plans is that they are jerry-rigged to make the religious effect look
more powerful than it really is. Experts have said that recidivism will
only be reduced when the most dif¬cult criminals are included, while
these programs are cherry-picking the believers who already have a good
track record. Thus, the program™s positive impact on recidivism may be
a chimera. It may be that the success of the Florida program, at least,
has more to do with its job training and life-skills courses than it does
with religion, and those assessing these programs need to be hardheaded
in making such determinations. If recidivism rates are reduced, that will
save states many dollars while the general public is served by a reduction
in criminal activity. If they do not, and the system has jettisoned the core
criminological methods to rehabilitate prisoners, the people of the state
of Florida will be in worse shape than they were when the program was
introduced.
Like RLUIPA, these are experiments in accommodating and meeting
religious prisoners™ needs. Also like RLUIPA, there is good reason to worry
whether the government is acting in a neutral and evenhanded manner
toward particular religions or religion in general. If it strays from the path
of neutrality, the Establishment Clause will raise barriers to the program,
and prisons will either have to adjust or abandon these attempts. It is too
early to tell how they will operate over the long term, but there is every
reason to watch them with care, as their models have spread like wild¬re
through the state prison systems desperate to contain costs and reduce
recidivism. The religious groups behind these programs have taken on
some enormous social problems, and it is not just religious practice that
is at stake, but also the general welfare of the society as a whole.


The con¬‚ict between military requirements and religious
dress requirements
The military always has been given broad latitude to enforce the rules it
believes are necessary for order, discipline, and defense of the country.
The courts have not felt institutionally competent to take on the question
whether this uniform or that practice is necessary to ensure a strong
military. Those decisions belong in the hands of the executive, from the
170 / GOD VS. THE GAVEL


Supreme Court™s perspective. Thus, any accommodation by the military
will have to come through Congress, and it has.
In the 1980s, the Air Force prohibited its of¬cers from wearing headgear
other than that which was of¬cially authorized by Air Force rules. S.
Simcha Goldman was an Orthodox Jew who was required by his religious
beliefs to wear his yarmulke while on duty, as a clinical psychologist. He
had worn it for several years with no disciplinary proceedings, but he was
reported, and then told he could not wear the yarmulke with his uniform
outside the hospital. Goldman rejected the order, saying that the free
exercise of religion trumped the military regulation.
He won at the trial court, but the court of appeals reversed, and the
Supreme Court agreed. Only two months and a few days after oral ar-
gument, in an opinion written by then-Justice William Rehnquist, and
joined by Chief Justice Warren Burger and Justices Byron White, Lewis
Powell, and John Paul Stevens (which was a politically diverse group),
the court refused to second-guess the military™s determinations regard-
ing dress regulations. The regulation was reasonable and evenhanded,
and accorded with the military™s “perceived need for uniformity.”60 De-
spite the obvious burden on religious conduct, the court found no First
Amendment guarantee to alter military uniform requirements. The court
did not need to say it, but there was obviously no obligation for the Air
Force to refuse to let Goldman wear the yarmulke, which left open legisla-
tive accommodation, upon due consideration of the need for uniformity
in these circumstances.
In a telling dissent, Justice William Brennan, joined by Justice Thur-
good Marshall, argued that the court had “abdicate[d] its role as principal
expositor of the Constitution and protector of individual liberties in favor
of credulous deference to unsupported assertions of military necessity.”61
The dissenters simply did not buy the claimed interest in uniformity, and
would have penalized the Air Force, because it had yet to explain why
a “neat and conservative yarmulke” was inconsistent with the uniform.
Justice Harry Blackmun dissented separately to say that the Air Force
had not convinced him that its interests were harmed by the yarmulke
and he wanted to know why the service could not accommodate not
only Goldman but also those with “indistinguishable requests for reli-
gious exemptions,” so he would not have stopped with an exemption for
THE PRISONS AND THE MILITARY / 171


yarmulkes, but would have used the Constitution to impose a uniform
exemption policy in other circumstances as well.62 Justice Sandra Day
O™Connor, joined by Justice Marshall, also dissented, because she was not
persuaded there was any threat at all to discipline or esprit de corps by an
accommodation “ she has always stood by judicial accommodation.63
Every dissent was a quintessential example of legislative reasoning “
carried out by unelected justices. The dangers of permitting courts to
engage in such weighing is painfully evident, as each of the three dis-
sents had a different accommodation in mind. A legislature would have
been forced to examine all the choices, compromise, and ¬nd a single
accommodation that was in the best interest of the public.
Now, the typical tale of the Free Exercise Clause in the United States
would have many decrying the Goldman v. Weinberger decision as a sell-
out to the military, or an abdication of First Amendment principles, or an
utterly unfair imposition of majority dress practices on a minority religion
that could not protect itself in the political process. That is the standard
story, and plenty were critical. According to one commentator, “in fact,
there was no support offered by the government for its claims other than
the bare assertion of military judgment and the abstract interest in mili-
tary preparedness, duty, and discipline. . . . Yet for the Goldman Court, the
abstract military interest and the military™s judgment of reasonableness
were constitutionally suf¬cient.”64
But that is not the end of the story. When the Court refused to carve
an accommodation out of a neutral and generally applicable regulation,
the ¬ght was taken to the halls of Congress. And guess what? Congress
enacted an exemption for religious headgear,65 and so Orthodox Jews
(and other religious believers) may now wear religious headgear in many
circumstances. The accommodation makes a lot of sense if one looks
at the whole picture. What makes the most sense, though, is that the
court declined to impose its limited knowledge of military uniform needs
through a tortured reading of the Free Exercise Clause, and instead let
the issue migrate to the political branch, where it was most appropriately
addressed.
Such headgear accommodation, though, has its limits, as it must. A
Sikh man insisted on wearing a turban, which is required by his religion,
with his uniform “ even when a helmet was required. The U.S. Court
172 / GOD VS. THE GAVEL


of Appeals for the Ninth Circuit held that the military had the right to
court-martial someone who will only wear a turban in combat.66 That is
just plain common sense.


Conclusion
Courts are institutionally incompetent to determine religious accommo-
dation in the prisons beyond the Constitution™s regime, which recognizes
a right to be treated equally with similarly situated prisoners, a rule against
singling out a particular religion for negative treatment, and a rule that
the prison must at least show a “legitimate penological interest” to justify
regulation. That is the right balance. Congress™s decision with RLUIPA to
alter the standard dramatically by making all prison regulations substan-
tially burdening any religious inmate™s religious conduct presumptively
illegal is hard to defend. The record is too slim to justify the interference
with the extraordinarily dif¬cult job of running a prison. It is also telling
that even though no members of Congress raised substantive concerns
about any other regime governed by RFRA or RLUIPA, there was gen-
uine concern on the part of Senators Reid, a Democrat, and Thurmond,
a Republican.
As the yarmulke case makes clear, accommodation can be achieved
in the legislative process, even when the group is a smaller religion and
even when the Supreme Court has refused to craft a constitutional rule
for the believer. Judicial deference to the military and to the prisons is
not the end of religious liberty; it™s just ordered liberty.
7


DISCRIMINATION




There is little question that “discrimination” is a dirty word in the United
States, and discrimination by religious entities is counterintuitive to the
prevailing notion that religion is always a force for good. Religious groups
do, though, clash with the antidiscrimination laws in two primary arenas:
housing and employment. This is a context where legislative accommo-
dation has played and should play an active role in measuring the con-
¬‚icting rights claims. Legislative accommodation is needed, as opposed
to judicial, because making a determination whether to accommodate
the religious practice, for example, of excluding unmarried couples, or
to favor a right to shelter requires broad-ranging and forward-thinking
analysis. No court, deciding the issue in the context of a single case, is
competent to take into account all of the interests that need to be con-
sidered. The ¬nal accommodation is a complicated equation that calls

173
174 / GOD VS. THE GAVEL


for legislative reasoning regarding what the law should be and not just an
interpretation of a law.
This is not to say that the courts have not imposed their view of accom-
modation on these issues. In the employment context, the courts crafted
the “ministerial exception,” which has immunized religious employment
decisions from judicial review in some circumstances. As I will discuss,
there is reason to think that this accommodation is not consistent with
current First Amendment doctrine. Equally, though, it is highly likely
that legislatures would grant a rather similar legislative exemption for the
cases involving a religious employer and religious employee.
There are two ends of the spectrum in these cases. Religious entities
may always discriminate on the basis of religious belief. In other words,
Presbyterians can decide only to hire Presbyterians to be a minister or el-
der. At the opposite end is race discrimination. Both ends of the spectrum
appeared in Hopkins v. Women™s Div., Bd. of Global Ministries, where a
federal district court ruled that although Global Ministries could prevail
on the religious discrimination claim under Title VII, the employee™s
claim regarding race-based discrimination was not covered by Title VII™s
exemption for religious entities and could not be the bene¬ciary of the
“ministerial exception.” Therefore, the race discrimination claim would
go forward.1 Thus, if a religious entity insists on discriminating according
to race, it can be held liable under Title VII, or like Bob Jones Univer-
sity, it will ¬nd that it can be denied certain government privileges, like
tax-exempt status.
The United States is still working out these issues, but if there is any
movement, it is toward the enforcement of civil rights against religious
entities and away from expansive immunity for them. Some will argue
this proves the culture is being secularized by contemporary culture,
whether it is from television, motion pictures, or music. I would posit,
however, that the “secularization” card in the political context is, in fact,
a red herring. The increasing inclination to hold religious entities to the
mores of the general society is not a 20th- or 21st-century turn against
religion, but rather a turn toward a shared sense of fundamental fairness,
a concept that owes its origin in no small part to religious precepts. In the
United States, religion has never been wholly separate from politics, and
antidiscrimination principles have been derived as much from religious
principles as secular.
DISCRIMINATION / 175


Rather, Anglo-American culture has been working out a logic of jus-
tice vis-` -vis religious entities for centuries. As Chapter 9 demonstrates,
a
the Catholic Church started in Britain as sovereign and above the state,
but the internal logic of the common law and the now-overriding prin-
ciple that one is not permitted to harm others have come together to
deconstruct the arguments that at one time justi¬ed permitting religious
entities latitude to harm others. Antidiscrimination is just the most re-
cent iteration of the principle that one is not allowed to harm others.
In this arena, a basic sense of fairness appears to be winning over lib-
ertarianism, and legislative accommodation fares better than judicial
accommodation.


Housing discrimination by religious individuals
In the United States, many religious home or apartment owners have du-
tiful scruples about letting their property be used by unmarried couples,
gay couples, and/or unwed mothers. They have not fared terribly well
under the fair housing laws, in no small part because the availability of
shelter is one of the primary needs of humans.
The housing discrimination issue played a pivotal role during the
passage of the Religious Freedom Restoration Act (RFRA), its invali-
dation, and then the Religious Land Use and Institutionalized Persons
Act (RLUIPA). When RFRA was ¬rst proposed in 1990 and then passed
in 1993, it was next to impossible to ¬nd anyone who objected to it, in-
cluding initially myself. What could possibly have been wrong with more
religious liberty? Indeed, those behind the law were on what seemed
like a noble cause. Senators Orrin Hatch (R-Utah) and Edward Kennedy
(D-Mass.), who frequently team up for religious entities, spoke in elegiac
terms about what they were doing and others spoke in larger-than-life
terms about their mission. They were the literal saviors of religious lib-
erty, or so they said. Senator Kennedy, proclaimed, “Few issues are more
fundamental to our country. America was founded as a land of religious
freedom and a haven from religious persecution. Two centuries later,
that founding principle has been endangered.”2
Sen. Daniel K. Inouye (D-Hawaii) declared: “Today, we take a his-
toric ¬rst step in assuring that the protections of the ¬rst amend-
ment to the U.S. Constitution will not be diminished.”3 Senator Hatch
176 / GOD VS. THE GAVEL


certainly worked himself into a lather over the purported trivialization of
religion:

So, the time has come to put an end to the motivations blame game
that seems to have become the fashion in this country. All too often, our
society dismisses out-of-hand those who admit a religious motivation.
The term “religious fanatic” is so overused “ and misused “ that anyone
who seeks to translate religious belief into political action is demonized
as a fanatic. . . . And that™s what the Religious Freedom Restoration Act
is all about “ allowing people with sincere religious beliefs to act upon
those beliefs, to participate in the public debate without having to run
the gauntlet of unnecessarily large Government roadblocks.4

His statement makes RFRA sound a lot more reasonable than it was. In
fact, RFRA did not merely remove the “unnecessarily large roadblocks”
from religious conduct; it removed all legal roadblocks other than those
deemed most necessary by the courts.
Hatch also failed to comprehend the irony of the entire RFRA pro-
cess. According to him, and many others, RFRA was needed because
the Supreme Court had thrown religious actors to the legislative pro-
cess (translate, wolves), and one couldn™t trust legislatures to do the right
thing by religion.5 Legislatures could not be trusted to protect religious
liberty, but the federal legislature would enact the most far-reaching and
bene¬cial statute for religious entities in United States history?
There is something so fundamentally wrong with this picture, it is
hard to know where to start. Suf¬ce it to say that Congress™s willingness
to pass a blind accommodation statute for dozens of religious groups “
without asking whether disabling every law in the country might be a
policy mistake “ negates the theory that the Court had thrown believers
off a cliff. It looks like a pretty soft landing.
While I do not question the sincerity or conviction of the members
of Congress, I do have to question their common sense for two reasons.
First, the scope of RFRA was mind-boggling. RFRA, by its terms, poten-
tially disabled every law in the country, presumably including many the
senators had fought to get enacted. Yet, they stayed within the religious
advocate™s bubble, where all that matters is making sure the believer is
free, and the social context or the harm that might accrue lie outside
their sphere of concern. As elected representatives, their job is to think
DISCRIMINATION / 177


outside the box of every legislative proposal, but it does not appear that
it ever occurred to them that there was anything beyond the RFRA box.
Part of the problem lay in the bill™s modus operandi: It was a constitu-
tional standard in form, and constitutional rules apply across the board.
Moreover, the bill™s breadth was so enormous that it drove analysis away
from speci¬c examples. If one is thinking of every law in the land, it
is tough to come down to particular issues. There was no natural place
to start criticizing it, so almost all of the analysis (with the exception
of prisons at the end of the bill™s history) resided at a very lofty and ab-
stract level. None of this is to excuse the members for not asking any of
the hard questions, but it is an explanation. And the members were not
the only ones who didn™t penetrate the surface of RFRA to its inherent

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