The U.S. Supreme Court has held that while “prison walls do not form a barrier separating inmates from the protections of the Constitution,” the right to free speech can be curtailed when “legitimate penological concerns” are at stake. The Court’s unwillingness to hold firm on the free religious expression of people in prison created fertile ground for discrimination against already targeted religious minorities. Accordingly, courts often allow a correctional institution’s interest in its bottom line to override incarcerated individuals’ interest in their right to free exercise. In particular, Muslims in prison face an obstacle course of employee-inflicted and court-sanctioned barriers to eat a diet in accord with their sincerely held religious beliefs. As the Missouri Department of Corrections’ diet policy aptly explains, for many, the body is a “repository for the divine.” Religious dietary constraints should not be viewed as an additional or optional financial inconvenience for state correctional departments, but must be understood as a necessary consequence of our country’s zealous insistence on mass incarceration. Moreover, Muslim and Jewish people eating in accord with their religious beliefs should not be subject to a host of additional sanctions that threaten their quality of life and chances at parole. For those unconvinced by the existence of a prevailing right to free religious expression for all Americans, there is evidence to suggest that restrictions on the legitimate free exercise of people in prison may actually hinder the department’s security interests, instead of furthering them.
Our nation’s history with the religious rights of incarcerated people is winding and blemished. The penitentiary was a Quaker alternative to corporal punishment, but it did require a largely Protestant brand of penitence. New arrivals at Eastern State Penitentiary in Pennsylvania were provided a Bible and spent their sentence in solitude, with the hope that Christian religious awakening would generate contrition. The latter half of the 20th century ushered in a Court and Congress that were comparatively sympathetic to the free expression concerns of people in prison. In conjunction with its general defense of free exercise, the Court specified in 1970 that “[p]risoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” However, the Court began to hedge, and in 1987 held that corrections departments could enforce facially neutral regulations that incidentally burdened religious expression. In response, Congress passed the Religious Freedom Restoration Act (RFRA). Since RFRA can only be constitutionally applied to people incarcerated in federal prisons, Congress later unanimously passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to protect those in state prisons. Both Acts use a balancing test: the correctional institution can place a substantial burden on an incarcerated person’s religious expression if it is (1) in furtherance of a compelling government interest and (2) the least restrictive means of furthering that interest. Despite Congress’s atypically bipartisan effort to protect the incarcerated, the Court continued to waver, granting prison officials substantial deference in RLUIPA’s balancing equation.
The September 11, 2001 attacks came on the heels of RLUIPA and were a watershed moment for much of the country’s attitudes towards Islam. In the five years following 9/11, Muslims constituted 10% of the national prison population, but brought a disproportionate 27% of RLUIPA claims. The wake of the attacks allowed prison officials to cite concerns about radicalization and homeland security to justify religious suppression. In a 2019 report published by Muslim Advocates, a civil-rights advocacy organization, 39% of RLUIPA claims brought by Muslims between October 2017 and January 2019 stemmed from dietary restrictions.
Religious diet discrimination can take many forms, and often follows a pattern on the institutional level. Initially, the department may refuse to make any halal accommodations. Many departments cite budgetary constraints, but others, like the Massachusetts Department of Correction (DOC) have expressed concern that halal meals would be perceived by non-Muslims as “special treatment.” Fortunately, several courts, including the U.S. District Court for the District of Massachusetts, have found this blanket denial unacceptable. Similarly, Muslims may also be offered kosher and vegetarian meals, which present distinct problems. Kosher and halal dietary constraints overlap in their prohibition of pork and cross-contamination, but the similarity stops there. The most substantial difference is that the slaughter of halal meat must minimize animal suffering, making meat offered as part of a kosher meal generally unacceptable. In other words, “what is [k]osher is not [h]alal,” and what is halal is not kosher. Moreover, the very notion that Muslims would be denied a halal alternative while their less numerous Jewish counterparts are allowed to eat kosher smacks of discrimination. Vegetarian meals are also not necessarily halal and pose a problem for Muslim practitioners that believe the Qur’an does not just prohibit non-halal meat, but affirmatively requires the consumption of halal meat.
If ordered to provide halal meals, correctional institutions often place recipients under heightened scrutiny, increasing the incidence of disciplinary reports. This burden effectively discourages religious individuals from requesting special diet meals for fear of losing privileges and damaging their chances at parole. For example, the Massachusetts DOC requires that individuals requesting special diet meals attend every “chow,” and they are not allowed to eat any de facto halal items from the non-halal meal line. The DOC initially removed people who did not attend meals from the religious diet list and denied them future access to special diet meals. The DOC has since modified their policy and now may impose restitution for the cost of the meal upon people who do not attend and issue a disciplinary report, which can result in months without access to the phone or recreation. In addition to the institutional hurdles that Muslims must clear to eat halal, correctional officers may bring their personal biases to the job, and leverage the disciplinary system in a disproportionate manner against Muslims. Meanwhile, those that eat the standard meal are free to attend or skip chow as they please.
There are several reasons why any person in prison, and particularly a Muslim, would want or need to skip a meal. To start with the universally relatable: people get sick, the weather gets cold, and sometimes you just want to enjoy that macaroni you saved up to purchase from the canteen in peace. More critically, there may be someone at chow that you need to avoid in order to prevent implication in a disciplinary issue, or to protect your safety. A protestant Christian is generally free to stay in his cell for any of these reasons, but a Muslim may damage his chances at parole. Beyond these universal experiences, fasting and feasting are integral parts of the Muslim faith. Other than the obligation to fast during Ramadan, for which the Massachusetts DOC does make some accommodations, Muslims are encouraged to fast on Mondays and Thursdays, on the 13th – 15th of each lunar month, or even to celebrate good news from home. Even though these practices are not religiously mandated, they fall under the First Amendment’s protections outside of the prison context, and they should within prison walls.
For those that are unconvinced that free expression is an unqualified good, and perhaps believe that courts are right to defer to prison’s budgetary and security concerns, there are a few remaining points worth considering. First, if we allow for the religious rights of incarcerated minorities to be compromised, we should not be surprised when the formerly incarcerated, approximately 1 in 150 Americans, return to their communities and carry with them the religious discrimination that they either witnessed, propagated, or suffered. Second, for those concerned with prison and national security, at least one national security expert has testified in front of the United States Commission on Civil Rights to explain that denial of avenues for legitimate religious expression in prison actually serves to foster radicalization and unrest, instead of thwarting it.
If we hope to even pretend that our prison system serves a rehabilitative purpose, legitimate and safe religious practices should be whole-heartedly embraced. Accordingly, courts should not dilute RLUIPA’s “compelling interest” standard to cushion the DOC’s bottom line. Taxpayers that support policymakers with “law and order” and “religious liberty” platforms should understand that we will need to foot the bill for the dietary rights of millions of incarcerated Americans. Finally, Departments of Correction should resist the urge to implement policies that they know will actively discourage adherents of minority faiths from free exercise. To do so is to fly in the face of our Founders’ recognition that religion is an intrinsic part of the human experience and essential to equality in a democratic society.