The Big Man in the Big House: Prisoner Free Exercise
in Light of Employment Division v. Smith
INTRODUCTION: FIRST AMENDMENT FREE-EXERC ISE CLAIMS ON
THE INSIDE AND OUTSIDE
Shocking as it might seem, prisoners possess more free-
exercise protections than private citizens.1 As proof of this
proposition, consider the following hypothetical. A Rastafarian
man is arrested for smoking marijuana. Outraged, he files a First
Amendment claim alleging that the state’s categorical ban on
marijuana use violates his right to religious free exercise.2 While
his claim is pending, another man—a Rastafarian prisoner—brings
a First Amendment free-exercise suit challenging a similar prison
ban on marijuana use. When presented with the private citizen’s
free-exercise claim, the judge applies the rule set forth in
Employment Division v. Smith and immediately dismisses the
claim.3 When evaluating the prisoner’s free-exercise claim,
however, the judge applies the rule set out in Turner v. Safley and
only dismisses the claim after conducting a more intensive judicial
analysis.4 While the judge’s rulings on both claims were the same,
the methods by which the judge adjudicated the claims were not.
Currently, prisoner and nonprisoner free-exercise claims are
evaluated under different standards of review, and the standard
applied to prisoner claims appears to embody a stricter form of
judicial scrutiny than the standard applied to nonprisoner claims.5
Outside the prison context, First Amendment free-exercise claims
are subject to the rule set forth in Smith.6 Under Smith, a
constitutional violation does not exist if an alleged burden on
religious free exercise is the result of a neutral law of general
Copyright 2012, by JOSEPH THOMAS WILSON.
1. U.S. CONST. amend. I (“Congress shall make no law resp ecting an
establishment of religion, or prohibiting the free exercise thereof . . . .”
2. See id.
3. See generally Employment Div., Dep’t of Human Res. of Ore. v. Smith,
494 U.S. 872 (1990).
4. See generally 482 U.S. 78 (1987).
5. See discussion infra Parts I–II.
6. Michael Keegan, The Supreme Court’s Prisoner Dilemma: How
Johnson, RLUIPA, and Cutter Re-Defined Inmate Constitutional Claims, 86
NEB. L. REV. 279, 281 (2007) (“[In] Employment Division v. Smith . . . the Court
abandoned strict scrutiny for non-inmate free exercise claims (i.e., cases outside
the prison context) in favor of a deferential facial review.” (citations omitted)).
See also Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2978, 2995 n.27
(2010) (applying Smith to a state university’s neutral and generally applicable
220 LOUISIANA LAW REVIEW [Vol. 73
applicability.7 Therefore, under Smith, the judge in the above
hypothetical was able to dismiss summarily the nonprisoner’s
claim because any alleged free-exercise violation was the result of
a neutral and generally applicable law banning all marijuana use.
Prisoner free-exercise claims, on the other hand, are subject to the
rule set out in Turner.8 Under Turner, a prison regulation is
unconstitutional if it is not “reasonably related to legitimate
penological interests.”9 To determine the reasonableness of a
prison regulation, a court must balance four factors—factors that
are not addressed under the bright-line rule set forth in Smith.10
Turner thus appears to require a judge to examine free-exercise
claims with greater scrutiny than Smith requires. Surely, there must
be some justification for this seemingly backward state of affairs.
Unfortunately, this is not the case.
This Comment posits that no valid justification exists for the
continued use of Turner in prisoner free-exercise cases. Turner
creates a conundrum whereby courts apply a higher level of
scrutiny to prisoner free-exercise claims than to nonprisoner free-
exercise claims. In effect, the continued application of Turner
provides comparatively greater protection to prisoner free-ex ercise
rights. Such a result lacks precedential support and is antithetical to
the well-established constitutional principles underlying the Turner
standard. Instead of applying Turner, courts should apply Smith to
all First Amendment free-exercise claims regardless of their
In reaching this conclusion, Part I of this Comment presents the
development of the Turner and Smith standards. Part II
demonstrates how Turner embodies a higher level of scrutiny than
Smith. Part III then argues that Turner’s continued application to
prisoner free-exercise claims is contrary to Supreme Court
jurisprudence, as well as the foundational principles of the Turner
standard. Part IV presents the circuit courts’ primary justifications
7. See Smith, 494 U.S. at 878 (“[I]f prohibiting the exercise of religion . . .
is not the object of the [law] but merely the incidental effect of a generally
applicable and otherwise valid provision, the First Amendment has not been
offended.”); see also Flagner v. Wilkinson, 241 F.3d 475, 490 (6th Cir. 2001)
(Nelson, J., dissenting) .
8. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349–50 (1987).
9. Turner v. Safley, 482 U.S. 78, 89 (1987).
10. The four Turner factors include: (1) whether there was a “valid, rational
connection” between the prison regulation and the government interest
justifying it; (2) whether there was an alternative means available to the prison
inmates to exercise the right at issue; (3) “the impact [that] accommodation of
the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally;” and (4) the existence of ready
alternatives to the challenged regulation. Id. at 89–91.
2012] COMMENT 221
for Turner’s continued viability and explains why these
justifications are unpersuasive. Finally, Part V of this Comment
illustrates how Smith is equally capable of protecting prisoner, as
well as nonprisoner, free-exercise rights. As a result, this Comment
concludes that Smith should be the standard of review for both
prisoner and nonprisoner free-exercise claims.
I. RECENT HISTORY OF FREE EXERCISE: PRISONER AND
NONPRISONER STANDARDS OF REVIEW
The First Amendment protects the free exercise of religion
by guaranteeing that “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof
. . . .”11 Interpretations of the First Amendment’s Free Exercise
Clause have changed significantly over the past forty-plus years.12
In particular, the United States Supreme Court has struggled to
determine which standard of review should govern free-exercise
cases.13 Between 1963 and 1990, the Court made two notable shifts
in the free-exercise standard of review.14 One shift involved
prisoner free-exercise cases, while the other involved free-exercise
A. Strict Scrutiny of the Sherbert Analysis
The recent history of free-exercise jurisprudence began in 1963
with Sherbert v. Verner.16 In Sherbert, the United States Supreme
Court addressed the constitutionality of a South Carolina
unemployment compensation law.17 The South Carolina statute
prevented a Seventh-day Adventist from receiving unemployment
payments because she was unwilling to work on Saturday, her
11. U.S. CONST. amend. I.
12. See generally Patricia E. Salkin & Amy Lavine, The Genesis of RLUIPA
and Federalism: Evaluating the Creation of a Federal Statutory Right and Its
Impact on Local Government, 40 URB. LAW. 195, 196–208 (2008) (illustrating
the changes in constitutional and statutory free-exercise standards from 1963
13. Id. See also James D. Nelson, Incarceration, Accommodation, and Strict
Scrutiny, 95 VA. L. REV. 2053, 2057–59 (2009) (explaining the multiple shifts in
standards of review in free-exercise cases).
14. See Nelson, supra note 13, at 2057–59; see also discussion infra Parts
15. See Nelson, supra note 13, at 2057–59; see also discussion infra Parts
16. 374 U.S. 389 (1963); see also Nelson, supra note 13, at 2057.
17. Sherbert, 374 U.S. at 399–401.