RLUIPA and inmates' right to have sex with their spouses

[Susan Freiman]

I think the husband's duty to satisfy his wife is viewed more as the 
wife's right.  If they marry after incarceration, they have both waived 
this.  And if the argument were made to a court, the response would 
almost certainly be like that of convicted defendants pleading at a 
sentencing hearing that the children need him - "You should have thought 
of this before committing your crime." 

But the US Constitution wouldn't apply, of course, with the result that 
in the States, more serious consideration would be given to his rights 
as a Jew than here.  But as I just mentioned, nearly all defendants get 
paroled for visits with family while serving their sentences.  This is a 
matter of standard penal law and has nothing to do the prisoner's religion.

Susan

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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