A DIFFERENT KIND OF PRISONER'S DILEMMA: THE RIGHT TO THE FREE EXERCISE OF RELIGION FOR INCARCERATED PERSONS.

• Date: 01 May 2020
• Author: Judge, Daniel T.

INTRODUCTION

Properly understood, the right to freedom of religion should encompass broad protections for a prisoner's free exercise to teach, practice, worship, and observe his or her faith. Scholars typically analyze the right to freedom ofreligion in two distinct ways--either as a constitutional right or as a fundamental human right. And yet, the former should be understood as a positivized protection of the latter. This Note will analyze a prisoner's right to the free exercise of religion in the context of a prisoner's right to a preacher anda place to worship. In doing so, it will separately analyze the constitutionally protectedright in the United States and the internationally protected human right in the context of the European Court of Human Rights. However, in concluding, this Note will demonstrate that the constitutional right and the international human right are fundamentally one and the same.And, of even greater importance, it will show that the underlying protections owedto incarcerated persons are the same, regardless of the analytical framework.

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the rightin the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court's decision in Holt v. Hobbs. Part II addresses the right tofreedom of religion internationally. It begins by considering the international right to religious freedom under the Universal Declaration of Human Rights and the European Convention on Human Rights and then discusses recent case precedents in the European Court of Human Rights. Finally, Part III offers conclusions and recommendations regarding how the right ought to be interpreted and applied both domestically and internationally for the better protection of a prisoner's right to a preacher and a place to worship. This includes both jurisprudentially in emerging cases such as Holt v. Hobbs II and in the context of international policy through means such as the U.S. State Department's new Commission on Unalienable Rights.

1. THE CONSTITUTIONAL (AND STATUTORY) RIGHT TO FREEDOM OF RELIGION

   1. Constitutional Background: The Framers' Understanding of the Free Exercise Clause

      The text of the First Amendment is clear: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (1) Since its ratification, the Free Exercise Clause has been applied to protect "the right to believe and profess whatever religious doctrine one desires." (2) However, in the lead up to ratification, the need for an express constitutional protection was far from obvious. (3)

      Prior to the First Amendment's ratification in 1791, American states had experienced 150 years of religious diversity. (4) Furthermore, at the time of ratification, twelve of the thirteen states already had free exercise or freedom ofconscience provisions in place. (5) These laws were frequently used to protect the free exercise of religion and conscience even when they conflicted with otherwise generally applicable laws. (6) Thus, the ratification debates were steeped in the core belief of religious freedom. This context is necessary to properly understand the Free Exercise Clause as it was originally enacted--with a broad interpretation.

      One of the key differences in opinion at the time the Free Exercise Clause was proposed and ratified was between the Federalists and the Anti-federalists. On the one hand, the Federalists famously argued that the Free Exercise Clause was an unnecessary addition to the Constitution. (7) Any amendmentexplicitly protecting religious freedom would not only be superfluous, butit would also run the risk of implying that a nonexpressed personal liberty was not protected. (8) On the other hand, Antifederalists argued thatan express protection was both desirable and necessary. These arguments were largely promulgated by Protestant and Baptist believers who feared that the federal government would have the ability to overpower states and individuals without an explicit mandate not to. (9) While the Antifederalists would ultimately carry the day, (10) the Federalists' arguments reveal deep insights into the original public meaning of the Free Exercise Clause.

      Professor Michael McConnell breaks the Federalists' argument into two distinct strands. The first strand is the argument that the government had no place and no right to restrict the free exercise of religion. (11) James Madison himself made this argument at the Virginia Ratifying Convention. (12) His June 12, 1788, paper used an observation of the current state of religious liberty as a defense for the sufficiency of then-existing religious protections as well as an argument against the necessity for an express provision. He commented that "[h]appily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society." (13) Thus, the Federalists argued that a free exercise clause was unnecessary, not because they lacked a commitment to freedom of religion as a fundamental human right, but rather because the protection of religious liberty already existed in its premier form.

      In these same comments, Madison argued that "[t]here is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." (14) For his part, Alexander Hamilton warned of the danger that a bill of rights could impose, predicting it would "afford a colorable pretext to claim more than [was] granted." (15) In other words, Hamilton argued, why declare that the freedom ofreligion shall not be restrained "when no power is given by which restrictions maybe imposed?" (16) Once again, Hamilton, Madison, and the Federalists used this first strand of their argument to promote an essential understanding of the government as it was originally framed, intended, and understood by the public. At bottom, the government had no right to impede the free exercise of religion. Therefore, when the protection was eventually ratified as part of the Bill of Rights, it was seen as a positivized safeguard for a preexisting human right, rather than as a newly established legal right.

      The second strand of the Federalists' argument is again best summarized by the Father of the Constitution, who wrote:

      [I]n the federal republic of the United States... all authority... will be derived from and dependent on the society, [and] the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals,or of the minority, will be in little danger from interested combinations of the majority. (17) Here, Madison and the Federalists believed that the structural reality of the Constitution would prevail. A free exercise clause was unnecessary because the nation was already so diverse and the structure of the federal government so restrained that the personal liberties of minorities would be protected.

      Today, this argument may seem unpersuasive for several reasons. First, why wouldn't the Federalists simply add an explicit provision, even if society was as diverse and the Constitution as structurally restrained as they claim? Second, religious minorities at the time still had legitimate reasons to fear theinfluence of an outsized and unrestrained government. Third, a plethora orplurality of parts does not inherently protect the rights of each individual part from infringement by those in power. In fact, it would seem more likely to lead to the undetected or unnoticed infringement of a vulnerable minority. However, here, it is crucial to remember that up until this point Americans had historically believed that the area of religious exercise "should be reserved to the individual conscience" and there was no place or role for the government in that reserved space. (18) The idea of free religious exercise as a fundamental human right was the baseline understanding that informed the ratification debates, the framing of the Constitution, and the subsequent proposal and ratification of the First Amendment.

      The nature of the right to religious freedom at the time of ratification is perhapsbest revealed by contrasting the subtleties of the Federalists' argument with the views of the influential John Locke. At the Founding, the idea of religious freedom expanded beyond Locke's notion of religious toleration andlegislative primacy. (19) John Locke wrote "that all the Power of Civil Government relates only to Mens [sic] Civil Interests; is confined to the care of the things of this World; and hath nothing to do with the World to come." (20) Locke viewed the role of government as distinct from religion. However, Locke further stated that "Churches have neither any Jurisdiction in worldly Matters,nor are Fire and Sword any proper Instruments wherewith to convince mens [sic] Minds of Error, and inform them of the Truth." (21) Here, Locke asserts his notion of legislative primacy. While government and church are separate, government comes first in worldly matters; an idea wholly at odds with the Framers' vision.

      Professor McConnell differentiates between the Lockean view and the Americanview by stating that "the former takes the perspective of government and the latter the perspective of the believer." (22) McConnell further notes that the "paradox" of these religious freedom debates as a whole is that "one side employed essentially secular arguments based on the needs of civil society for the support of religion, while the other side employed...