State RFRAs and conjugal visits

[David Guinn]

>>>  Eugene Volokh on 11/23 9:11 PM wrote in part:

.... What if a state disclaims any security interest, and asserts only an interest in
punishing criminals by denying them conjugal visits, or perhaps only an
interest in not treating inmates who have religious motivations for
conjugal visits better than inmates who have equally deeply felt secular
motivations for such visits?
>>>>

There have been a number of discussions recently in which concern was expressed over favoring religion over deeply felt secular beliefs.  This would appear to be the teaching of Seeger and the many decisions talking about neither favoring nor disfavoring religion.  Yet the First Amendment itself seems to demand discrimination (in the sense of distinguishing between "what is" and "what is not....") by explicitly seeking to protect religion through the FE and EC clauses.  As memory serves, the proposal to protect an abstract "conscience" offered by Madison (?) was rejected in favor of protecting "religion."

This does not mean that secular acts of conscience are not protected ― they may, for example, fall under free speech, privacy, or assembly rights.  However, it appears to me that the specific effort to protect religion suggests that the drafters did "favor" religion, based in part upon the benefits it conferred to society (see Washington's Farewell Address), and believed that protecting it required certain safeguards not required by secular conscience.  While clearly not dispositive, this intention of the drafters does suggest we carefully rethink what we mean when we argue against "favoring" religion over non-religion when the act in question is in some way definitional as to what it means to be religious (i.e. to adhere to the tenets of one's faith.)


David E. Guinn, JD, PhD
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