Faith profaned: the Religious Freedom Restoration Act and religion in the prisons.

• Author: Solove, Daniel J.

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

1. 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. First, courts determine whether the government's interest - the goal of the law - meets a certain threshold of importance. The higher the level of scrutiny, the higher the threshold. Second, courts analyze the precision with which the law achieves the governmental interest. The higher the level of scrutiny, the more narrowly the government must tailor means to ends.

   Strict (or "heightened") scrutiny is the most rigorous form of judicial review; courts often refer to it as "the most rigid"(10) scrutiny or "the most exacting"(11) judicial examination. The Court has applied strict scrutiny to cases involving content-based restrictions on speech in public fora,(12) suspect classifications,(13) and laws that impair fundamental rights.(14) Under strict scrutiny, the government bears the burden of demonstrating that its interest is "compelling,"(15) paramount,"(16) overriding,"(17) or "of the highest order."(18) The law must be narrowly tailored so that the fit between means and ends is extremely precise; in one common formulation of this tailoring, the government must use the "least restrictive means" of achieving the law's purpose.(19) Rarely will a law survive the searching examination of strict scrutiny,(20) leading one scholar to declare that when suspect classifications are involved, strict scrutiny is "'strict' in theory and fatal in fact."21

   Intermediate scrutiny requires that governmental interests be "important"(22) or "substantial"(23) as opposed to "overriding." Courts apply intermediate scrutiny in cases involving gender-based classifications;(24) time, place, and manner restrictions on speech in public fora;(25) and restrictions on commercial speech.(26)

   Minimal scrutiny, often referred to as "rational-basis review,"(27) is the lowest form of constitutional scrutiny. When applying minimal scrutiny, courts will uphold the law if it has a "rational relation"(28) to "legitimate governmental purpose."(29) Unlike strict scrutiny, minimal scrutiny presumes that the law is valid and places the burden on the challenger "to negative every conceivable basis which might support [the law]."(30) Courts will sustain a law even if it is based on rational speculation unsupported by evidence or empirical data."(31) Minimal scrutiny is employed when reviewing restrictions of access to nonpublic fora,(32) nonsuspect classifications,(33) and infringements on nonfundamental rights.(34) As Professor Gerald Gunther observed, minimal scrutiny is "minimal ... in theory and virtually none in fact."(35)

   Throughout the history of Free Exercise Clause jurisprudence, courts have struggled to find the proper way to balance religion with governmental and penological interests. Religion has been particularly difficult to place on the scale, for courts must evaluate religious practices without becoming entangled in theological issues. Balancing religion is particularly complicated in the prison environment. Engulfed in problems - prison gangs, overcrowding, violence, and riots - and exacerbated by limited finances, outdated facilities, and a soaring inmate population,(36) prisons must accommodate the demands of a panoply of faiths. Outside the prisons, religious adherents can select their own diets, places of worship, and religious leaders, but in the prisons, these aspects of religious life must be supplied and regulated by the penal institution.

   Certainly incarceration necessitates some restrictions on rights, but it does not follow that all rights should be curtailed: "There is no iron curtain drawn between the Constitution and the prisons of this country."(31) The difficulties of prison administration create the potential for prisons to succumb to neglect, racism, and religious intolerance(38) and for prison officials to curtail inmates' rights not only when necessary, but also when merely convenient. To protect prisoners' right to the free exercise of religion, judges must employ some degree of scrutiny. The difficult issue is determining the extent to which rights must be curtailed and how carefully courts should probe into prison administration.

   Complicating the balancing is the fact that prison administration is fraught with uncertainty. Penology is not a rigorous science but a set of ad hoc procedures, uncertain goals, and ambivalent and underanalyzed policies that vary widely from prison to prison.(39) In Governing Prisons,(40) John J. DiIulio, Jr. notes that there is a dearth of trustworthy information concerning prison management,(41) no uniformity among prisons concerning penological goals,(42) and only "fragmentary knowledge and untried opinions about how to improve prisons."(43) During the 1960s and 1970s, forty-two states drastically reformed their prison systems, yet "[t]hose responsible for these major organizational overhauls were mostly unaware of the related activities of other states."(44)

   The efficacy and effects of prison policies are often shaded with doubt, and judges must make decisions in the face of uncertainty. Will accommodating certain religions incite animosity in other prisoners? Will making too many accommodations eviscerate the prison's control over inmates? Will the cumulative cost of accommodations deplete limited prison resources?

   Any accommodation of religion involves the potential for resentment, and any change in existing prison policy presents the possibility of danger. Almost all decisions invoke the fear of the slippery slope. These risks and uncertainties can easily lead to a complete refusal to make accommodations, and consequently, to the demise of judicial protection for prisoners' religious liberty. To safeguard prisoners' free exercise rights, judges cannot retreat from the task of balancing, no matter how daunting it may appear.

2. Free Exercise in Flux

   Outside of the prisons, the Supreme Court's difficulty in finding an appropriate balance between religious free exercise and governmental interests led to the gradual formation, extensive erosion, and eventual abandonment of a strict scrutiny standard...