Market-protecting chaplains and the First Amendment

[Douglas Laycock]

  Assuming the facts are accurately stated, this clearly violates
RLUIPA.  I think it also violates the Free Exercise Clause even under
the deferential standard of reasonable relationship to a legitimate
penological interest. The Christian chaplain's worries about Buddhism
are not a legitimate penological interest.  But of course, if the case
went to trial the defense would make up some BS about the difficulty
of supervising the meditation sessions, and claim the chaplain's
unfortunate remarks had nothing to do with the decision.

  Defense might also claim this wasn't really Buddhism, just
meditation, cultural rather than religious.

  The damages are emotional distress for loss of the right to
participate in a religious practice.  If an employer say somehow
coerced a religious employee into not going to worship services for
four years, a jury might bring in serious money.  For prisoners
deprived of Buddhist meditation, the jury award would be trivial. 
But Congress wouldn't give the jury a chance to do them in.  The
Prison Litigation Reform Act says there can be no damages awarded to
a prisoner in the absence of physical injury.

  Mark Tushnet once plausibly wondered on another list if that
restriction were constitutional. I suppose he was thinking of an
equal protection claim, which is straightforward enough, but in the
current judicial environment, I wouldn't place any confidence in
that.

  Quoting Sanford Levinson <SLevinson at law.utexas.edu>:

> There is a fascinating story in today's NYTimes,
>
http://www.nytimes.com/2007/09/13/movies/13dhar.html?ref=arts&pagewanted[1]
> =print, about a documentary on an Alabama prison whose lifer
inmates
> engaged in a Buddhist meditation program.  It was a voluntary
program,
> so I assume there are no First Amendment problems (though I'd
obviously
> be very interested if anyone disagrees).  What is relevant to our
group
> is the following:
>
>
>
> No one thought these guys could tolerate a 10-day meditation
course,"
> Ms. Phillips said in a phone interview. But the prisoners did more
than
> tolerate it.
>
> "We were finding that after this 10-day course, inmates were better
able
> to control their anger and better able to conduct themselves," said
Dr.
> Ron Cavanaugh, director of treatment at the Alabama Department of
> Corrections, who worked with Ms. Phillips to bring Vipassana
meditation
> to Donaldson. "The initial group had about a 20 percent reduction
in
> their disciplinary histories." After the course ended and the film
crew
> returned to Massachusetts, the Dhamma brothers continued meditating
> daily, with a longer sitting once a week.
>
> But months later, in July 2002, they received word that they would
no
> longer be allowed to sit, and Ms. Phillips would no longer be
allowed to
> film.
>
> "The chaplain had reservations about inmates turning into Buddhists
and
> losing his congregation," Dr. Cavanaugh said. "He called the
> commissioner; the commissioner called the warden and told the
warden to
> shut down the program."
>
>
>
> Is there any conceivable constitutional defense of the Corrections
> system capitulating to the "reservations" of the chaplain, who
seems
> motivated by nothing else than a fear that he was about to lose
some
> market share.  (Would it be any better if he feared that the
inmates
> would lose their prospect for eternal salvation by forsaking
> Christianity in favor of Buddhism?)  As it happens, after four
years,
> the Department changed its mind, and the documentary that is the
focus
> of the story thus has a "happy" ending.  And, query, would anyone
have
> standing to sue for damages (and what would they be?) for the
> unconstitutional four-year hiatus caused by the unconstitutional
> capitulation?
>
> sandy
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] 
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