Prison officials' ordering Muslim prisoner-cook to handle pork may violate the Free Exercise Clause

|The Volokh Conspiracy |

So the Ninth Circuit held last Friday in Jones v. Williams, though the decision turns in part on the prison's own admission that the kitchen could function just fine even if such requests for exemption were granted (and of course the rule would apply equally to Jewish religious objectors or to anyone else who feels a religious objection to handling pork):

A person asserting a free exercise claim must show that the government action in question substantially burdens the person's practice of her religion. "A substantial burden … place[s] more than an inconvenience on religious exercise; it must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on an adherent to modify his behavior and to violate his beliefs."

"The right to exercise religious practices and beliefs does not terminate at the prison door[,]" McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987) (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)), but a prisoner's right to free exercise of religion "is necessarily limited by the fact of incarceration," Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.1993) (citing O'Lone, 482 U.S. at 348). "To ensure that courts afford appropriate deference to prison officials," the Supreme Court has directed that alleged infringements of prisoners' free exercise rights be "judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone, 482 U.S. at 349. The challenged conduct "is valid if it is reasonably related to legitimate penological interests." …

[G]overnment action places a substantial burden on an individual's right to free exercise of religion when it tends to coerce the individual to forego her sincerely held religious beliefs or to engage in conduct that violates those beliefs. "[R]equiring a believer to defile himself by doing something that is completely forbidden by his religion is different from (and more serious than) curtailing various ways of expressing beliefs for which alternatives are available." … [W]e [have] held[, for instance,] that a Jewish inmate had the right to a kosher diet and disposable utensils. We explained that, in the case of dietary restrictions, the inmate had no alternative means of exercising the right, whereas there were "obvious, easy alternatives" that the prison could implement. "The existence of reasonable alternatives decisively tip[ped] the balance in favor of [the inmate's] free exercise right." …

[Likewise, o]rdering a Muslim prisoner to handle pork requires him "to defile himself by doing something that is completely forbidden by his religion." [In context, the court is referring to the Muslim religion as understood by the prisoner, not passing judgment about what Islam actually requires.-EV] And there are no alternative means of allowing Jones to exercise his right to avoid handling pork besides not ordering him to handle pork. Accommodating Jones's right to avoid handling pork isn't less burdensome than the religious-based accommodations, such as providing Kosher diets and disposable utensils, that we have held for many years are constitutionally required. Indeed, several months before Jones was ordered to handle pork, Superintendent Belleque informed Jones that "there is no need to require Muslim inmates to handle pork." Belleque's memo strongly indicates that assigning Jones a task that did not require him to violate his religious beliefs was a ready option and would not significantly affect prison personnel, other inmates, or the general allocation of prison resources….

The court rejected Jones' claim, though, that his Free Exercise Clause rights were violated when the prison served grilled meat without adequately cleaning pork residue off the grills. ("Workers in the kitchen use vegetable oil and a cinder block to scour the surfaces of grills and then remove the excess grease without use of chemical cleaners or grease removers." Jones argued that this "leaves residual amounts of pork grease on the grills.")

Even assuming that Jones has raised an issue of fact as to whether the grill-cleaning method resulted in the grills being contaminated by Islamic standards or violations of Department regulations, he has failed to show that the prison's grill-cleaning method imposed a substantial burden on his religious exercise. There is no genuine dispute that inmates were presented alternatives to grilled meat at every meal while Jones was in custody. Jones points to no evidence that grilled meat was such an important benefit that he was substantially pressured to eat it and thereby violate his religious beliefs. We have long recognized the prisoner's "right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." Here, however, Jones has failed to show that he needed grilled meat to remain healthy or to satisfy the dietary requirements of his religion.

Note that the lawsuit was brought under the generally government-friendly Free Exercise Clause test applicable to prison inmates. The Religious Land Use and Institutionalized Persons Act implements a more demanding standard (see the recent Holt v. Hobbs decision), but it has been read as not authorizing damages remedies; and while it does authorize injunctions, here the behavior was unlikely to be repeated (and thus unlikely to need an injunction) because Jones is no longer in prison.

Finally, the careful reader might wonder: Given that, under Employment Division v. Smith (1990), the Free Exercise Clause doesn't generally give religious objectors a right to exemption from religion-neutral rules, why do prisoners get some such right (even under the relaxed O'Lone standard)? Sure, O'Lone was decided before Smith, during the era when religious objectors generally were presumptively entitled to some exemptions from religion-neutral rules, and O'Lone was a government-friendly version of that rule as applied to prisons; but why hasn't that been reversed by the courts since Smith?

Part of the reason, I think, is that very many prison rules are vastly more restrictive than what we see the government applying to ordinary law-abiding citizens outside prison. The government, for instance, doesn't generally set specific grooming and dress requirements for ordinary citizens, or give them a limited menu of food that they can eat. I suspect that, because prison rules are so much more intrusive than the rules applied to ordinary citizens, the courts have wanted to retain some extra degree of religious exemptions from such extra-burdensome rules. (Of course, the government acting as employer and as operator of the military does impose some comparably intrusive rules, but there are special legal principles that restrain the government there, too, albeit statutory principles—such as the Title VII religious accommodation requirement—rather than constitutional principles.) Perhaps despite this, O'Lone should be overturned, and the prison rule should be "no Free Exercise Clause exemptions," rather than just "very rare Free Exercise Clause exemptions" (which is what O'Lone in practice amounts to); but what I've just said is the best explanation I have for why courts haven't actually done this.