Strict scrutiny and parole conditions

[Volokh, Eugene]

        Parole conditions are another area where RFRA goes beyond the
Sherbert-era case law.  Circuit cases have generally scrutinized parole
conditions, including not only those that incidentally burden religion,
but also those that directly burden speech, quite deferentially.  But
RFRA, on its face, says that strict scrutiny is the right test (at
least, post-Boerne, for federal parole conditions); likewise for state
RFRAs.

        In the prison context, RFRA might indeed not make that much of a
difference, because most prison restrictions probably can pass strict
scrutiny -- the security needs of the prison are very different from the
security needs of normal institutions.  But I'd say that in the parole
context, RFRA makes a big difference.  The parole condition in this case
is an excellent example.  What's the compelling interest purportedly
being served?  If it's preventing abortion clinic blockades, then why
isn't the interest adequately served by a parole restriction on
blockading clinics, or even on attempting to blockade clinics?

        True, a ban on the parolee coming within 500 feet of an abortion
clinic may be a reasonable prophylactic measure -- but not, it seems to
me, a narrowly tailored prophylactic measure.  Even under the weaker
intermediate scrutiny applicable to restrictions on picketing outside
abortion clinics, restrictions that are also often justified as
prophylactic measure to prevent trespass, blockade, and worse, such a
ban would be hopelessly overbroad, even when applied to groups that we
have reason to believe do want to blockade clinics.  See Madsen.  A
fortiori, it seems to me this would apply under strict scrutiny, at
least if strict scrutiny means anything.  Am I mistaken here?


J.E. McNeil writes:

>     As a legal representative of the Religious Left, I have
> consistently found that the courts (especially the kind of judge who
> would let the woman continue to harass people who are exercising their
> own right of abortion) have had no problem concluding that probation
> banning protesting in a certain local passes constitutional muster.
> As we are often told by the Prosecutors:  "If you can't do the time,
> don't do the crime."  And, indeed many of my clients, including 80
> year old women who felt God compelled them to try to end nuclear
> weapons and apartheid and other such travesties HAVE done the time.
>
>     So yes, I think placing a ban during probation is the least
> restrictive means of meeting the compelling interest.  Not imposing
> the ban does not meet the compelling interest at all.  You have not
> suggested a lesser restrictive means and nor, apparently, did she.
>