Straws in Wind

[Marie A. Failinger]

On Sat, 28 Jun 1997, Douglas Laycock wrote:

>        10.  The Ninth Circuit just held that prisoners have a right to
> Kosher meals if it is easy to provide them, and they found that it was.
> This is a free exercise holding under O'Lone v. Shabazz, which requires a
> reasonable relationship to a legitmate penological objective, or something
> like that.  Smith is not cited; they just assumed that O'Lone was still good
> law in prison cases.  So in the 9th Circuit at the moment, the free exercise
> standard for prisoners is more protective than the free exercise standard
> for free citizens.  Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997).
>

Although it may not be fair to query Doug in his absence, his apparently
ironic statement about the relative rights of prisoners and free citizens
puzzled me.  Should prisoners get more limited religious freedom rights
because they have forfeited religious freedom by their acts (and what
implications for religious belief would that have!) or because they are
more likely to make religious belief up than "free people" to get some
advantage(as so many judges seem to believe)?  Unless one makes such
arguments, I would think "more"
religious freedom/accomodations, for prisoners would make sense
since they, like military persons, are a captive audience and so have very
few alternatives. . . .  Following Jesse Choper, there is, of course, a
chance that "some initially fraudulent claims of belief in a personal
religion would develop into true belief. . ."  And this would be a
problem?

 Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu