Right to Religion?

by Nathan Bruschi | 2/26/09 1:59am

Jason Paul Indreland, a Satanist inmate in the Montana State Prison system, is suing Yellowstone County for $10 million on the grounds that his religious freedom was infringed on by his guards, who refused his requests for satanic medallions and reading materials.

Traditionally, a prisoner's First Amendment right of religious freedom is subject to limitations when a "valid, rational connection" is established between prison regulations and legitimate government interests. If a crucifix can be used as a weapon, it's banned. When it is too expensive to provide a TV to a Catholic who is discontent with the Baptist religious programming that plays on prison TVs each Sunday, the state doesn't.

This paradigm forever changed on May 31, 2005, when the Supreme Court upheld The Religious Land Use and Institutionalized Persons Act of 2000, and provided prisoners at federally-funded prisons with "strict scrutiny" protection: the burden of proof now rests with the prison to show that its rules do not unnecessarily restrict prisoners' exercise of religion, rather than on the prisoners to prove that the rules do.

What troubles me about the ruling is that the Supreme Court has elevated a set of beliefs and traditions labeled as "religion" as worthy of government accommodation above other practices. A prisoner may belong to a cultural group in which it is traditional to drink wine with dinner, or may simply desire to have that luxury. While that inmate's request would be rejected every time, the government would be actively required to accommodate a Christian inmate who wanted wine with communion, barring an overwhelming and specifically demonstrated government interest against it. Other challenges may come from Native Americans who want to wear their hair long for spiritual reasons, Catholics who want to wear crucifixes, Jews who desire specially and potentially expensively prepared meals, or Muslims on kitchen duty who wish to not handle pork.

We've all been conditioned with the fairly basic view that discrimination is wrong. Discrimination on the basis of race, national origin, gender and sexual preference -- factors beyond the individual's control -- are outlawed, and rightly so. But what of religion? Given that people can convert, and that 40 percent of Americans will switch from the faith of their upbringing, religion is voluntary. People can choose which set of principles and customs they use to guide their lives, and should they not find one suitable, they are free to create their own. While for many inmates, religion is a sincere conviction that gives them inner strength, the fact that the government cannot question the basis for inmates' practices leads to problematic outcomes. Barring a cost-benefit analysis between government interest and personal freedom, what is to prevent people from joining the Amsterdam Cannabis Ministry to circumvent drug laws? Without reasonable side-constraints on religious freedom, what would prevent inmates from also joining and demanding that prison officials furnish them with pot so they can practice their faith? Seemingly any custom can be categorized as "religious."

Some may say that a faith's established religious tradition or mainstream status is necessary to gain acceptance. If the individual right to the free exercise of religion exists, it shouldn't matter whether others believe the same thing as you, or for how long in the past we can trace the beliefs. A "conventional calculus" may be used to permit practices that are deemed "conventional," but what, besides our familiarity with the Abrahamic faiths, makes them conventional? Perhaps the most troubling element of the Supreme Court's 2005 ruling is that it privileges religion over non-religion. If a person gets one more privilege by stating that it is a part of his religion, he inherently gets more freedom than non-practitioners.

Without a practicality test for the right to religious practice, conditional on the demands it places on external parties (e.g. taxpayers), inmate demands in the name of religion could be made ad absurdum. I do not believe that we can judge the validity of personal faiths, especially given the unfalsifiable nature of many of them, but I do think we can say which demands are reasonable, and which are in conflict with just authority.

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