Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons

By Solove, Daniel J. | The Yale Law Journal, November 1996 | Go to article overview

Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons


Solove, Daniel J., The Yale Law Journal


Incarceration by its nature denies a prisoner participation in the larger human community. To deny the opportunity to affirm membership in a spiritual community, however, may extinguish an inmate's last source of hope for dignity and redemption.

When Congress passed the Religious Freedom Restoration Act (RFRA)(2) in 1993, it aimed to increase dramatically the level of protection for inmates' religious liberties, which had only received minimal judicial scrutiny in the past. RFRA was primarily a response to the 1990 case of Employment Division v. Smith,(3) in which the Supreme Court refused to apply strict scrutiny review when generally applicable laws burdened religious practices.(4) In addition to resurrecting strict scrutiny for these cases, RFRA extended this heightened level of protection to the free exercise claims of prisoners. "We want religion in the prisons," declared Senator Orrin Hatch, one of the original sponsors of RFRA. "It is one of the best rehabilitative influences we can have. Just because they are prisoners does not mean all of their rights should go down the drain . . . "(5)

Despite RFRA's apparent drastic change in the degree of protection for prisoners' religious rights cases, RFRK's stated level of scrutiny is not the controlling factor in the way many courts are deciding prisoners' free exercise cases. The reason stems from two tendencies that have plagued the history of the judiciary's involvement in this area of law and continue to exist under RFRA. First, many courts have failed to understand and evaluate prisoners' religious free exercise claims properly, resulting in the undervaluation of burdens on religion when applying RFRA's substantial burden test.(6) Second, many courts have not employed sufficient skepticism when analyzing penological interests. Too much deference - what this Note will call "nonskepticism" - has led to decisions based on intuition and conjecture rather than on empirical data and facts. As a result, prison regulations of dubious validity and narrowness have easily passed muster despite RFRA's compelling interest and least restrictive means tests. This lack of skepticism has transformed RFRA's strict scrutiny into the de facto equivalent of minimal scrutiny. Congress, in crafting RFRA, failed to recognize the power of these tendencies to affect the outcome of the balance. By neglecting to eliminate them, RFRA has not established a uniform heightened protection of religion in prisons.

Part I of this Note sketches a brief history of prisoners' religious rights before RFRA and discusses how RFRA purported to redefine the way courts balanced religious free exercise against penological interests. Part II illustrates why numerous courts, in spite of RFRA, have not changed how they balance competing interests in prisoners' religious rights cases. Finally, Part Ill explains how courts can improve their application of RFRA's strict scrutiny.

1. Scripture on the Scales: The Troubled History of

Religion in Prisons

A. Balancing Religious Free Exercise

Judicial balancing, the dominant mode of constitutional jurisprudence in the latter part of this century,(7) has placed its imprint on the Free Exercise Clause. Generally, when a law conflicts with a constitutional right, a judicial balancing approach assigns values to the constitutional right and to the governmental interest that the law seeks to achieve. The weighing of the competing values does not occur directly, as if each were placed on a scale with the heavier side prevailing; instead, balancing uses various levels (or tiers) of judicial scrutiny,(8) with the weight of the right (and the manner in which it is infringed) determining the stringency of a court's review.(9)

Courts employ three levels of scrutiny when reviewing laws that inhibit constitutional rights: strict, intermediate, and minimal scrutiny. The standard for each level of scrutiny has basically the same structure. …

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