27-c-1 First Amendment Free Exercise Clause

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

27-C-1. First Amendment Free Exercise Clause

Prior to the enactment of the Religious Freedom Restoration Act, under the Free Exercise Clause of the First Amendment,⁵³ prison officials must provide you with a "reasonable opportunity" for you to exercise your religious freedom without fear of penalty.⁵⁴

However, in certain circumstances, prison officials may restrict this right to exercise or practice your religious beliefs.⁵⁵ Specifically, a prison may lawfully impose rules or regulations that interfere with your sincerely held religious beliefs, provided that these rules or regulations are "reasonably related" to a "legitimate penological purpose or goal" of the prison.⁵⁶ These legitimate goals might include maintaining prison order, discipline, safety, and security, among others.⁵⁷

So, in order to successfully challenge a prison regulation or practice under the Free Exercise Clause, you must be able to show that:

(1) Your belief is religious in nature,⁵⁸

(2) Your belief is sincerely held, and

(3) The prison regulation is not reasonably related to a legitimate penological (prison) purpose or goal.⁵⁹

The answer to the first two questions must be "yes" before a court will consider whether the regulation is reasonably related to a legitimate purpose or goal.⁶⁰ The following discussion looks at each of these requirements in more detail.

(a) Religious Nature of Your Beliefs

The court will first decide whether your beliefs are religious.⁶¹ The First Amendment only protects religious beliefs; therefore, if the court determines that your beliefs are simply moral or philosophical, it will not find any violation of the Free Exercise Clause.⁶²

While this rule is fairly clear, courts have had difficulty defining exactly what constitutes a religious belief.⁶³ The Supreme Court has cautioned that "[t]he determination of what is a 'religious' belief or practice is more often than not a difficult and delicate task,"⁶⁴ and the court has not yet authoritatively or comprehensively defined "religion."⁶⁵

Without a fixed definition, lower courts have adopted various approaches. For example, the Third Circuit has adopted an objective test to determine whether a belief is religious. In Africa v. Pennsylvania, the court identified three factors that help distinguish a religion:

(1) A religion addresses fundamental and ultimate questions having to do with deep and imponderable matters;

(2) A religion is comprehensive in nature: it consists of a belief-system as opposed to an isolated teaching; and

(3) A religion often can be recognized by the presence of certain formal and external signs.⁶⁶

By contrast, the Second Circuit has adopted a more subjective test, one that looks not to the external features of the belief system, but towards the "individual's inward attitudes towards a particular belief system."⁶⁷ In Patrick v. LeFevre, the court described religion as "the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine."⁶⁸ Thus, courts in the Second Circuit will probably look to whether your beliefs are religious in your "own scheme of things."⁶⁹

These tests are not the only ones used in state or federal courts, so be sure to research the law in your state or federal circuit. Although predicting whether a particular court will recognize a particular belief system as a religion is hard, you should be aware of some guideposts.

First, the U.S. Supreme Court has stated that the main consideration in deciding whether beliefs are religious is the role they play in the life of the person making the claim.⁷⁰ Second, the Supreme Court has emphasized that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."⁷¹ Likewise, your religion does not need to be organized like a traditional church,⁷² conform to an established doctrine,⁷³ or otherwise meet any organizational or doctrinal test.⁷⁴

For example, a federal district court recently held that a prisoner who had invented his own religion had a potentially valid claim under the First Amendment and RLUIPA.⁷⁵ In DeSimone v. Bartow, the prisoner argued that prison officials had violated his right to free exercise of religion when they prohibited him from keeping journals written in a language that he invented.⁷⁶ The prisoner asserted that he believed that biblical scripture commanded him to write in this language and that the act of writing was itself a religious act.⁷⁷ The court accepted his argument and allowed the suit to proceed, finding that the prisoner had set forth cognizable claims under both the First Amendment and RLUIPA.⁷⁸

Note, however, that although courts have held that non-major religions are entitled to First Amendment protection,⁷⁹ you may encounter greater difficulty if your religion is not well-known.

(b) Sincerity of Your Beliefs

If the court determines your belief is religious, it will next consider whether your belief is sincerely held.⁸⁰ Prison officials and courts may require that you demonstrate "sincerity," meaning a true and deep commitment to your religion.⁸¹

In making this decision, courts are not supposed to judge whether your beliefs are "accurate or logical,"⁸² or rule on the correctness of your beliefs.⁸³ Thus, a court may still find your belief sincerely held, even if the clergy says you are not a member of the religion.⁸⁴ Indeed, "clergy opinion has generally been deemed insufficient to override a prisoner's sincerely held religious belief."⁸⁵

Instead, courts will look to factors including your familiarity with your faith's teachings,⁸⁶ your demonstrated observance of its rules,⁸⁷ and the length of time that you have practiced these religious beliefs.⁸⁸ Thus, evidence that you are familiar with your religion, have practiced it for a long time, have participated in religious ceremonies when possible, or have otherwise acted on the basis of your religion can help to establish the sincerity of your religious beliefs.

(c) The Validity of Prison Rules and Regulations

If the court decides your belief is religious and sincerely held, it will then apply the Turner test to the prison regulation or practice that you are challenging by asking whether a prison regulation "is...