Rethinking Prisoner RFRA Exemptions

First, religious liberty is a human right. The Declaration of Independence envisions the rights of humanity as a gift from God and as preceding the existence of government. Thus the Bill of Rights should be understood not as a civil grant of rights, but as a civil recognition of rights that existed prior to and apart from the state. While some rights do require community involvement and existence to be realized ("freedom of association" or the exercise of the "freedom of speech" are examples), religious freedom has a peculiarly private, individual aspect. It can be, and often is, exercised solely between a person and God.

Indeed, most religions and enlightened philosophies recognize the responsibility each person has before God for his or her own conscience. This duty to conscience exists by virtue of one's being a human being before God. Prisoners are still human beings before God. They thus continue to have duties before their Creator, and must have the corresponding right to exercise those duties. To hold otherwise is either to deny the humanity of prisoners, or to deny the universality of God and conscience. Neither approach is a safe proposition. In exempting prisoners, the government treats religious freedom as a state-created and state-fostered policy that can be withdrawn at the whim of bureaucrats.

Second, prison RFRA cases did not clog the federal court system. Despite widespread claims that prisoners abused RFRA's protections by bringing a flood of federal lawsuits, the Justice Fellowship reports that prison RFRA claims accounted for fewer than 1 percent of cases in the U.S. courts in 1996. About 269,000 civil cases were filed in federal courts in 1996. Of these, about 41,000, or about 15 percent, were filed by prisoners. Roughly 2,000 of these cases, or less than 1 percent of the total, were RFRA prison suits.

Further, prisoners rarely bring a case under a single cause of action. They would usually throw in at least three different amendments that they claimed had been violated, and would toss in the prison-kitchen sink for good measure. It is unlikely that withdrawing RFRA's protections from prisoners will reduce the number of suits. New and more creative causes of action will be stated. If prisoners are exempted from RFRA because they abuse it, are they to be exempt them from the Fourth, Fifth, Sixth, Eighth and Fourteenth amendments to the U.S. Constitution because they abuse those as well?

Though a number of prisoner suits are frivolous, many aren't. And the frivolous suits are diminishing because of the recently enacted federal Prison Litigation Reform Act. This act requires prisoners to pay filing fees from their institutional accounts, has a "three-strikes-and-you're-out" rule regarding frivolous suits, and requires that a court clerk screen pro-se prisoner suits before any litigation actually commences. Perhaps it would be far more convenient and efficient to do away with prisoner access to our court system entirely. But as one federal judge quipped, if the courts are only about efficiency, and not justice, we may as well all go home.

Finally, RFRA did not interfere with legitimate prison operations. Under RFRA, prisons had the right to limit prisoner religious activity that posed a threat to the security or operations of the prison facility, much as the state had the right to curtail the religious activity of free citizens that threatened or endangered the lives, safety, or rights of fellow citizens. But in prison it is a given that the state, because of its security and safety concerns, has an even greater right to intrude into the lives of inmates. This means that prisoners cannot exercise their religious rights with the same expansiveness and breadth as nonprisoners.

But even prisoners have a duty to worship God. A properly crafted RFRA will protect this right and yet still allow prison administrators to maintain good order, security, and discipline. It will prevent, however, prison regulation of religious conduct that is grounded on mere speculation, exaggerated fears, or post-hoc rationalizations. Often, because of the scarcity of personnel and resources, prison administrators run only those programs that they have to run. If religious visitation and programming is not a mandated right, administrators unsympathetic to religion may well severely limit such activity or even cut it out entirely--an alarming fate for the "first freedom" in America's constitutional constellation of rights. If this right is not inviolable, then one must say, with James Madison, "that the will of the legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights."

For these reason, prison exemptions to state RFRAs are a bad idea, violating one of humanity's (which includes even prisoners') most basic rights.-N.M.

Article Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.