Prison Book Purge

[Conkle, Daniel O.]

Assuming the media reports are accurate, I think the government's purge
of religious books is outrageous.  That said, I'm wondering about the
legal framework for analysis.  Doug is quoted in the N.Y. Times as
saying that the government's justification must be compelling.  I can
see how that might be the test, assuming RFRA is triggered, but I wonder
if there is a substantial burden in not being provided with a religious
library with a particular set of books?  (I take it that prisoners who
can afford them can buy additional books on their own.)  Is the claim of
substantial burden enhanced by a claim of religious
discrimination--i.e., the government's picking and choosing of religious
texts--potentially implicating the Free Exercise Clause itself,
notwithstanding Smith?   Cf. Lukumi; but cf. Locke v. Davey.  Also,
thinking of some of Alan Brownstein's previous postings to the list, I
wonder if any claim under RFRA or under the Free Exercise Clause should
be considered in light of more general Free Speech doctrine, as applied
in the prison setting.  If Pico suggests that public school libraries
can remove library books limited only by a prohibition on narrowly
partisan decisionmaking (that's how I read the case, although I could be
mistaken), then what is the proper standard for a prison library?  Or is
the argument here that the government is essentially deciding what
counts as "good religion," at least for prisoners, implicating the
(Establishment and/or Free Exercise) principle that the government
cannot itself resolve theological questions?
Dan Conkle 
******************************************* 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 
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