Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners.

• Author: Mohammadi, Adeel

NOTE CONTENTS INTRODUCTION 1838 I. THE DEVELOPMENT OF THE LAW GOVERNING PRISONER ACCOMMODATION 1842 A. Before Smith 1843 B. The Smith Regime 1845 C. The RFRA Regime 1846 D. The Current RLUIPA Regime 1847 1. Religion 1849 2. Substantial Burden 1850 3. Sincerity 1852 II. SINCERITY 1854 A. The Sincerity Doctrine 1855 B. Sincerity and the Religious-Question Doctrine 1857 C. Why Require Sincerity? 1859 D. Should Sincerity Be Eliminated? l86l E. How Courts Evaluate Sincerity 1864 III. THE SINCERITY INQUIRY IN PRACTICE: EVIDENCE FROM MUSLIM PRISONER CLAIMS 1865 A. What Do the Religious Experts Say? 1867 B. What Does Islam Say? 1870 C. Are You a Consistent Muslim? 1872 D. Relying on Precedent 1874 IV. A NEW APPROACH TO SINCERITY 1876 A. Sincerity as Plausibility 1877 B. Plausibility and the Role of the Nonrational 1884 CONCLUSION 1886 INTRODUCTION

In February 2019, the practice of Islam in American prisons made national headlines. A Muslim inmate in an Alabama prison, Domineque Hakim Marcelle Ray, was set to be executed on February 7. (1) Ten days before his scheduled execution, he filed suit to have his imam join him in the execution chamber, instead of the Christian chaplain who is usually present. (2) While the Eleventh Circuit granted a stay halting his execution, (3) the Supreme Court--in a rare move--vacated the stay and allowed the execution to move forward. (4) Ray was executed as originally scheduled, and his imam was excluded from joining him in the execution chamber. In a forceful two-page dissent, the four liberal Justices discussed how the policy ran afoul of the Establishment Clause. (5) "The clearest command of the Establishment Clause, this Court has held, is that one religious denomination cannot be officially preferred over another," wrote Justice Kagan, adding that Alabama's "policy does just that." (6)

Ray's case will be remembered for testing a new Court's attitude towards complicated issues like the death penalty and religion. At the highest Court, the case centered around Establishment Clause issues. But the case was litigated at the district court on an additional ground that was not addressed by the Supreme Court: the free exercise of religion. Alabama allows prisoners on death row to elect execution by nitrogen hypoxia instead of lethal injection if the request is made before a certain deadline. (7) Ray missed that deadline, claiming that, at the time, "his religious beliefs prohibited him from electing how he would die" because such an election would be analogous to suicide, but his views had since changed. (8) As his execution approached, he consulted with an imam and subsequently sought execution by nitrogen hypoxia. Ray based his claim on a statutory right to freely exercise his religion in prison. (9) The district court found that Ray's change of heart was a matter of "personal preference" and that it was thus inappropriate to attribute his desire for an exemption from the deadline to his religion. (10) The court rejected the claim, and Ray was executed days later by lethal injection. (11)

The free-exercise claims of prisoners cover far more than methods of execution. Incarcerated individuals frequently file suit over food, grooming, clothing, worship services, access to devotional items, and much more, claiming that restrictive prison policies violate their ability to exercise religion freely. (12) Judges and lawmakers have decided, based on values enshrined in the First Amendment's Free Exercise Clause, that prisoners are entitled to heightened protections for their religious exercise and that prison officials should be made to answer for unjustifiably burdening prisoners' religious exercise. (13) Unless such a burden is legally justified, the prison must grant an accommodation allowing the prisoner to exercise her religion.

Free exercise of religion is a value that most agree is crucial to our American constitutional scheme. But we also worry about those who might abuse the law's religious accommodations. The vast majority of prisoners may be genuine in their claims to religious belief. But unscrupulous claimants can abuse the system by shrouding their claims in the language of religious exercise. In the prison context--where life is often made difficult as a form of punishment--a scheming prisoner may be tempted to use religion as a pretext to achieve better food, better clothes, better living arrangements, or fewer restrictions. (14)

The law has developed mechanisms to respond to this concern. Principal among them is the sincerity doctrine, according to which the state is only required to accommodate religious beliefs that are sincerely held. (15) The sincerity doctrine emerged as a functional tool to screen meritless claims in the wake of litigation surrounding conscientious objections to the military draft. By focusing on the sincerity of a claimant--draftee, prisoner, or otherwise--a court could deny claims for religious accommodation from the beginning, without having to engage in the more serious balancing tests that are common in free-exercise law. The sincerity doctrine is justifiable on first principles: "When a claimant is in-sincere, the law imposes no burden on religious exercise at all." (16) Today, sincerity is the touchstone and threshold inquiry in religious-exemption law, in areas ranging from immigration to employment discrimination. (17)

But while judges are allowed--and, in fact, required--to examine a claimant's sincerity, they are not allowed to make a determination about the truth behind a claimant's religious belief. (18) This is the so-called religious-question doctrine. The Establishment Clause prevents judges from making statements about what a religion does or does not say; the verity of religious claims lies in a nonjusticiable domain. Imagine a Muslim prisoner maldng the following religious-accommodation claim: "As a Muslim, I need a five-course dinner every night of the week." The religious-question doctrine prevents judges from asking whether Islamic teachings actually have such a gastronomic requirement. Instead, the court must rely on alternative means--usually the sincerity doctrine (in other words, the prisoner is not sincere in his belief that Islam requires a nightly five-course dinner)--to accept or deny the claim.

As I will show, this account of the relationship between the religious-question and sincerity doctrines is not entirely accurate. Though doctrinally prohibited, judges regularly inquire into the content of religious doctrines to help them adjudicate prisoner claims. These inquiries can take numerous forms, such as relying on religious experts to help weed out claims, (19) asldng whether other members of the prisoner's religion also believe that the accommodation is needed, (20) and even examining the content of religious texts to seek corroboration for the claim. (21)

This Note takes a special interest in the religious-accommodation claims of Muslim prisoners and documents the ways in which judges blur the theoretically strict boundaries between the sincerity doctrine and the religious-question doctrine when evaluating Muslim prisoner claims. Muslim prisoner claims represent a particularly interesting case study because Islam is a religion that contains a highly developed doctrinal and legal tradition in its own right that judges can readily scrutinize when looking for Islamic "evidence" to evaluate an accommodation claim. Furthermore, Muslims are significantly overrepresented within the American prison population, (22) and claims from Muslim prisoners have historically driven much of the jurisprudence surrounding prisoners' religious-exercise rights. (23) Indeed, two of the Supreme Court's seminal cases on prisoners' religious rights were filed by Muslim prisoners. (24)

By examining dozens of Muslim prisoner cases in the federal courts, I find that judges are frequently interested in what Islam has to say about Muslim prisoners' claims. In many cases, judges inquire into Islam and Islamic law to see whether a Muslim prisoner's claim for accommodation should be granted. If the claim is corroborated by Islamic doctrine, it is more likely to be accommodated; however, if the prisoner makes a claim completely unsubstantiated by Islamic doctrine, the claim is more likely to fail.

This Note thus describes the ways in which judges blur the line between religious doctrine and religious sincerity. But instead of concluding that judges should be policing that line more stringently, I try to lend doctrinal consistency to these rulings. By observing the practical challenges in keeping questions of religious sincerity and religious veracity separate, I posit a novel theory of the sincerity doctrine as one of plausibility. Instead of asking whether the Muslim prisoner requesting five-course meals is sincere in his belief, the inquiry is better understood as one of plausibility--is it plausible that the Muslim prisoner could need such an accommodation? Under this vision of sincerity as plausibility, the inquiry is less about psychologically analyzing a prisoner's subjective belief than about examining how plausible it is that a claimant of the prisoner's religion would require such an accommodation. The plausibility inquiry provides a more doctrinally consistent way of framing existing judicial practice. At the same time, it also provides a more practically feasible way of weeding out otherwise merit-less claims.

This Note proceeds in four Parts. Part I is a historical account of the development of religious free-exercise law in general and that of prisoners more specifically. In it, I describe the current dual statutory and constitutional regime that governs prisoner religious claims. In Part II, I turn to the sincerity doctrine and explain its historical roots and doctrinal justifications. I also explore the sincerity doctrine in relation to the religious-question doctrine. In Part III, I document the ways in which judges...