Are religious prisoners specially entitled to conjugal visits?

The Free Exercise Clause generally doesn’t mandate religious exemptions from generally applicable laws, but some state constitutions, some state statutes and some federal statutes do. One such statute is the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to prisons that take federal funds. Under RLUIPA, if a generally applicable rule “substantially burdens” an inmate’s religious practice, the prison must give the inmate an exemption, unless denying the exemption is the “least restrictive means of furthering that compelling government interest.” In practice, few exemptions end up being granted under RLUIPA, because the prison can often rely on the prison’s interest in security, and courts tend to defer in considerable measure to prison judgments on such security questions. But in theory, such exemptions are potentially available.

Yesterday’s decision in Thomas v. Corbett (Pa. Commw. Ct. Apr. 29, 2014) is the fairly rare case in which a court allows a prisoner’s RLUIPA claim to go forward. The opinion suggests that the state just didn’t really work hard at defending its position, perhaps because it thought victory was assured; the state will have more chances to win as the case goes forward. But if the state ultimately loses at the end, I think that would be very much the wrong result.

The claim in Thomas was that a prison’s no-conjugal-visits policy substantially burdened prisoner Gregory Thomas’s religious practice:

Thomas avers that his religion requires him to marry and, in fact, to have multiple wives. Thomas avers that DOC’s policy concerning visits from spouses precludes him from enjoying conjugal visits with his wives. Thomas avers that this policy has a detrimental effect on the status of his marriages, because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him.

The state did not challenge this substantial burden claim: “In this case, DOC does not challenge at this point either the nature of Thomas’s beliefs or whether the prohibition constitutes a substantial burden on such beliefs.” (It’s not clear to me whether the facts as Thomas reports them indeed suffices to show a substantial burden, though I agree that if Thomas himself feels a religious obligation to have sex with his wives, then forbidding him from fulfilling this obligation would indeed count as a substantial burden.)

The state did, however, argue that Thomas should lose because denying conjugal visits is the least restrictive means of serving a compelling government interest in protecting “the security of the prison and the safety of inmates and staff.” But, according to the court, the state “[e]ssentially … suggest[ed] we accept on faith the veracity of [its] assertions” that allowing Thomas conjugal visits would impair security, and the state “failed to even argue that its means is the least restrictive method by which to accomplish its alleged compelling governmental interest.” Therefore, the state “simply is not entitled at this early stage of the proceedings to dismissal of Thomas’s RLUIPA challenge to the conjugal visit policy.”

Now this might be the right result at this stage of the case, if the state’s briefing was indeed so inadequate. But I much hope — and expect — that, once the state shapes up, the religious exemption claim will be dismissed.

Religious exemptions often make sense. To give one classic example, courts often bar people from wearing headgear in the courtroom; but whether or not that’s generally wise, it makes sense to allow religious exemptions for people who feel a religious obligation to wear headgear (whether a yarmulke, a turban, a nun’s wimple, a Muslim woman’s headscarf, or whatever else). Generally, the purpose of the no-hat rule is just a matter of general decorum. But whatever might be the symbolism of wearing a normal hat indoors, surely there’s no disrespect that’s usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew’s wearing a yarmulke, or a Muslim woman’s wearing a hijab.

So there’s no important government interest in decorum really being served here. Nor is there an important government interest in equality in play here: There’s little unfairness in giving religious people this privilege, while denying it to nonreligious people who just happen to find a hat to be stylish, or want to express their support for their favorite baseball team in the courtroom. And there’s no important government interest in preventing people from feeling pressure to pretend religiosity in order to get to wear headgear in court, since few nonreligious people care that much about such matters.

Many other religious exemption claims are similar. Whatever one might say about the Hobby Lobby claim, for instance, the benefit that Hobby Lobby is seeking is valuable only to employers that share the Hobby Lobby owners’ religious views. Other employers who lack such views just wouldn’t want to provide their employees with the peculiarly truncated health insurance policy that Hobby Lobby wants to provide; they wouldn’t get any financial break, for instance, and if anything would just potentially lose valuable workers. (If Hobby Lobby did seek a financial break, then it would almost certainly lose, just as people who have sought exemptions from generally applicable taxes have lost.)

But here, Thomas is arguing for a right that would be extraordinarily valuable to many prisoners. Letting religious people but not secular people have sex with their spouses — something that is a very important part of most married people’s lives, and that, for nonprisoners, is a constitutional right — would be deeply unfair, precisely because of the magnitude of the benefit being offered just to the religious. One way of solving such problems, used in the draft cases, is to extend the exemption to those who have strong philosophical secular beliefs. But that would likely not be available here, I think, because so many prisoners would plausibly make such claims, and because part of criminal punishment is supposed to be the deprivation of many of the important things in life, including sexual relations with one’s spouse or lover.

What’s more, giving the exemption just to religious people would offer a remarkably strong recruiting tool for those religions that mandate sexual relations among spouses. I imagine very many prisoners would claim such beliefs, and would go through the motions — going to religious services, performing rituals, avowing beliefs, going through conversion processes, and the like — that would tend to make their claims more plausible.

Lee v. Weisman held that the social pressure to stand and remain silent during a graduation prayer is enough to constitute unconstitutional governmental “coercion” of religious practice. The pressure to go through the motions of religiosity imposed by a “prisoners can’t have sex with their wives, unless they’re members of certain religions” policy involves at least as much coercion of religious practice; even if the government could impose such a policy consistently with the Establishment Clause (and I’m not sure it could), I think the government can rightly claim a compelling interest in not creating such pressure.

And I think that this unfairness is indeed likely to harm prison security. I would think that some prisoners’ knowing that other prisoners are entitled to conjugal visits, for no reason other than the favored prisoners’ religion, would lead to tremendous resentment, and a resulting extra risk of violence. But even if I’m mistaken on this factual point, I think the normative point about the unfairness and the factual prediction about the pressure to claim religiosity suffice to justify denying Thomas’s claim.

This case isn’t a reason to reject RLUIPA, I think, or similar state laws. Indeed, for the reasons given above, the prisoner should ultimately lose his claim, and almost certainly will lose his claim — as I mentioned, prisoners rarely win RLUIPA cases even when their demands are much less objectionable. Still, I think it’s worth thinking about just why such claims should be rejected, even if one thinks that some other claims should be accepted.

Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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