Prisoner exemptions from state RFRAs

[A.E. Brownstein]

        Apparently, states vary considerably on the issue of excluding prisoners
from a state RFRA. In California, I believe the Dept. of Corrections has
raised concerns about the state bill, but the California Correctional Peace
Officers Association and the Associated Chaplains in California State
Service (prison chaplains) support the bill.

        While I would oppose excluding prisoners from a state RFRA on principle, I
don't think that the language that Eric Treene describes in the New Jersey
bill creates a different standard than the one the Federal courts applied
under federal RFRA. I haven't read all of the RFRA prisoner cases, but I
have looked at quite a few. "Nothing in this act shall be construed as
authorizing or requiring any correctional facility of any governmental
entity to provide for an incarcerated person's exercise of religion in a
manner in which there is a reasonable likelihood that it will endanger the
safety of other persons or disrupt the operation of the facility", the
language of the NJ amendment, seems to me to be a pretty accurate
description of what courts were doing under federal RFRA.

        I'm not sure that I understand what the states' concerns are regarding
prisoner litigation. If the problem is the sheer number of suits filed and
the time it takes to dispose of them, I don't see how the New Jersey
language will solve that problem. The issue of determining whether "there
is a reasonable liklihood that [permitting the religious practice] will
endanger the safety of other persons" will still have to be adjudicated. If
the problem is a concern that courts will require prisons to permit
religious practices that undermine prison security, I see nothing in the
RFRA prisoner cases I have read to suggest that this is likely to happen.

                                                                                        Alan Brownstein
                                                                                        UC Davis