RLUIPA and inmates' right to have sex with their spouses

[Jean Dudley]

I'd say that yes, the courts would have to uphold conjugal visits.   
Let's take it one step further:  What if a woman is incarcerated, and  
it was her husband who was filing suit saying that his religious duty  
was being infringed upon?


On Jan 18, 2008, at Fri, Jan 18,  3:19 PM, Volokh, Eugene wrote:

> 	From Bryant v. Tilton, 2008 WL 149990 (E.D. Cal. 2008):  "On
> March 9, 2007, plaintiff commenced this action by filing a complaint,
> challenging the constitutionality of the Family (Overnight) Visiting
> program as adopted by the California Department of Corrections and
> Rehabilitation (CDCR).  He alleges that he has been incarcerated since
> 1979 and is serving two concurrent life terms of imprisonment for
> murder.  Plaintiff also alleges that he wed in 1993 and was allowed to
> participate in the family visiting program at that time.  Plaintiff
> alleges that sometime in 1997, the CDCR amended the family visiting
> program to exclude inmates with certain classifications, inmates  
> who had
> been convicted of certain offenses and inmates, such as himself,  
> who do
> not have parole dates established by the Board of Prison Terms ....
>
> 	"Plaintiff ... contends that his exclusion from the program
> violates his rights under the First Amendment Free Exercise Clause and
> the Religious Land Use and Institutionalized Persons Act ('RLUIPA')
> because, as a Muslim, he must consummate his marriage within four  
> months
> pursuant to Islamic law, or his wife may file for annulment or  
> divorce."
>
> 	Now the court rejects this claim on the facts:  "Here, plaintiff
> has failed to sufficiently allege that the regulation in question
> infringes on or substantially burdens his free exercise of religion.
> Plaintiff alleges merely that the regulation violates his free  
> exercise
> rights because, under Islamic law, his wife may file for an  
> annulment or
> divorce if their marriage is not consummated within four months.
> However, as defendants point out, plaintiff wed in 1993 and at that  
> time
> he was able to participate in the family visiting program.  In fact,
> plaintiff participated in the program until 1997.  The allegations of
> the complaint in this regard, even accepted as true, fail to establish
> that plaintiff was impeded in the exercise of his religion by the
> challenged regulation."
>
>
> 	My question:  Say the facts were a little different, and the
> inmate believed -- in a not implausible reading of Jewish law, see
> http://www.jewfaq.org/sex.htm -- that "A man has a duty to give his  
> wife
> sex regularly and to ensure that sex is pleasurable for her."  Would
> RLUIPA therefore mandate that the prison provide the inmate with
> conjugal visits?
>
> 	Eugene
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