The Niqabi Paralegal

This continues my survey of the types of religious exercise claims Muslim inmates have made and how the courts have treated those claims.

Hayes v. Long, 72 F.3d 10 (8th Cir. 1995), deals with the right of Muslim inmates not to handle pork. Here, there was a clearly established right for Muslim inmates at the prison not to handle pork while they were on kitchen duty and the prison had no legitimate penological interest to forcing them to do so. Therefore, the Eight Circuit Court of Appeals decided in Hayes's favor.

Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996), involved a Muslim inmate who brought a variety of claims. During Ramadan (the month of fasting), the Muslim inmates were allowed to have their evening meal after sunset. This took place immediately after the other inmates had their meal. The prison officials did not clean the dining room between the two meals nor did they provide running water. The Muslim inmates alleged that this prevented them from having a clean area in which to pray and from being able to do the ritual ablutions required for prayer. Additionally, the tables were bolted in such a way that the inmates could not face Mecca. The following Islamic points should be noted. First, unless there was blood, defecatory matter, or alcohol on the floor, the dining hall would be considered ritually pure even though it would be unpleasant to prostrate on a floor covered with dirt and spilled food. Second, if Muslims are unable to find water for ablutions, they can do "dry ablutions" without. Third, as long as a Muslim makes a good faith effort to face Mecca, the prayer is valid as long as the exact direction is somewhere in their field of vision. The Islamic rules are flexible so that Muslims can complete the five daily prayers wherever they may be and whatever circumstances they may be in. However, in this case the district court judge dismissed the case out of hand, without enquiring into whether the conditions described by the plaintiffs constituted a substantial burden or not, and I think the Court of Appeals made the right decision in remanding this case.

Canedy v. Boardman, 91 F.3d 30 (7th Cir. 1996), deals with the question of modesty. Muslim men are required to cover their "private" area, which is from navel to knee, around everybody but their wives. It should not be seen by other men let alone by women. Canedy filed suit because female guards could see him in the nude while he was showering, using the toilet, or asleep. Also, female guards were present during strip searches. The Seventh Circuit Court of Appeals held that the prison's interest in being able to observe the inmates at all times outweighed Canedy's religious interests in not being seen in the nude by female guards. While I agree that there are strong security interests for the prison here, I think that the total lack of privacy is one of the most degrading aspects of prison and I think it would be better if prisoners would only be viewed by guards of the same sex as them.

Abdullah v. Fard, 1999 U.S. App. LEXIS 1466 (6th Cir. 1999), involved a Muslim inmate's request to be provided with halal meat. There are some types of food that Muslims cannot eat at all, such as pork or other substances taken from the pig. There is an additional requirement that meat be slaughtered according to Islamic, Jewish, or Christian regulations. There is a difference of opinion about whether most meat available in the West qualifies as having been slaughtered according to any kind of Christian regulations (some Muslims are also very strict about kosher meat and will only eat it if it would meet Islamic standards). Most scholars feel that it does not. The plaintiff Abdullah therefore requested that the prison provide halal (lawfully slaughtered) meat that had been slaughtered according to Islamic regulations. The Sixth Circuit Court of Appeals denied this request on the grounds that vegetarian meals were available and he could avoid unlawful meat by eating the vegetarian meals.

Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000), deals with beards. The plaintiff (referred to in the case by his Muslim name Khidar) wanted a religious exemption to wear a 1/4 inch beard. He pointed out that prisoners could claim a medical exemption (i.e., if shaving would aggravate a medical condition) and have a beard as long as 3/4 inch. The Fifth Circuit Court of Appeals rejected his claim. First, it said that the policy was general and neutral on its face and was not aimed at members of one religion. Second, it said that only a very small number of inmates seek the health exemption while a large number would seek the religious exemption. Further, it said that allowing a religious exemption would put the prison in the position of determining what are valid religious claims and what are not. Since the no-beard policy serves a legitimate penological interest, it was upheld. I think this ruling is unfortunate, since the same logic would limit just about any kind of religious expression.

I had previously mentioned Johnson v. Baker, which dealt with disputes among different groups classified as "Muslim". Johnson dealt with the Nation of Islam. There are several other cases that have looked at this issue. Bryant-El v. Bosse, 1995 U.S. App. LEXIS 1695 (7th Cir. 1995), deals with the Moorish Science Temple of America (MSTA). The MSTA differs substantially from orthodox Islam and has its own scripture. You can read more about it here. Logan Correctional Center did not mind allowing MSTA inmates to receive their own publications and to follow their own dietary rules. They could also worship, pray, and study independently. However, when it came to religious services, Logan required that the services be led either by a prison chaplain or a volunteer from the community. It did not allow the inmates to lead their own service, even under the supervision of a prison staff official. There were no prison chaplains who were familiar enough with MSTA to lead a service and they were unable to find a volunteer in the community to do so. The Seventh Circuit Court of Appeals found that the trial court had not looked at whether this particular regulation served a legitimate penological interest since it seemed to them that penological interests would be served by having a corrections officer or staff member present at the service, and a number of other prisons in the area allowed such a thing. Therefore, the Court reversed the order of summary judgment and remanded.

The other case I found is Small v. Lehman, 98 F.3d 762 (3d Cir. 1996). Whereas Johnson involved Nation of Islam Muslims who did not want to pray with orthodox Muslims, Small involved orthodox Muslims who did not want to pray with NOI Muslims. The Third Circuit Court of Appeals held that the orthodox Muslim plaintiffs had a valid claim under the Religious Freedom Restoration Act and the trial court should not have netered a summary judgment.

One of the things that the cases illustrate is that although the nominal standard ("a legitimate penological interest") is the same, the courts define that phrase differently. Where an RFRA is in force, the courts apply a stricter scrutiny, but where it is not, they may apply very little scrutiny at all.

As I said before, there are many more cases than these; I am attempting to provide a sampling only.