Religious exemptions and preferences for the religious over thenonreligious

[Friedman, Howard M.]

Except for its greater attractiveness, why is this different than
prisons granting special religious diets-which many routinely do?  Or
does the greater pressure to feign (or adopt) a particular religious
belief because of the attractiveness of the option make a constitutional
difference?

 

*************************************
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: howard.friedman at utoledo.edu 
************************************* 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 02, 2010 4:06 PM
To: 'Law & Religion issues for Law Academics'
Subject: Religious exemptions and preferences for the religious over
thenonreligious

 

               In Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. Feb.
18), a prison inmate claimed that the denial of conjugal visits with his
wife violated RLUIPA and the Free Exercise Clause because he believes
that "as a Muslim, he is required to engage in sexual relations with his
wife."  Assume that his belief is sincere; I suppose it might well be;
and let's even set aside whether the exception was justified under
strict scrutiny.  (The court didn't reach that, because it rejected the
claim on statute of limitations grounds.)

 

               Instead, assume that a prison decided to grant this
exemption from the generally applicable ban on conjugal visits, on its
own judgment or as a matter of state law.  Would such an exemption
limited to religious objectors be constitutionally permissible?  Or
would it be an undue preference for the religious over the nonreligious,
and on top of that one that pressures people into claiming religious
beliefs and participating in religious practices in order to do that?
(I assume that the incentive to claim religious beliefs posed in this
case is much greater than the incentive to sit through a graduation
prayer present in Lee v. Weisman.)

 

               Eugene

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