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.
Given that up to 15% of the U.S. prison population is Muslim (see previous post on facts and figures), it's not surprising that the courts have had to deal frequently with questions of Islamic religious practice in the prison setting.
The U.S. Supreme Court addressed this issue in O'Lone v. Shabazz, 482 U.S. 342 (1987). The particular observance at issue was the Friday prayer, called jumu'a in Arabic, which is equivalent to the Jewish Sabbath or Christian Sunday services. All adult Muslim men are required to attend the jumu'a service, which must be performed in congregation (rather than individually) on Friday between noon and mid-afternoon (specifically defined as the period between when the sun is at its zenith and when it is at approximately a 45° angle in the sky).
New Jersey's Leesburg State Prison implemented regulations concerning prisoner work details that happened to make it impossible for minimum security Muslim prisoners to attend the jumu'a service. Some of the prisoners brought suit, alleging a violation of their right to free exercise of religion. The Supreme Court, in a 5-4 decision, upheld the prison's policy on the grounds that it was reasonably related to legitimate penological interests. This remains the standard for inmates' free exercise claims even today.
Overall, the decision seems reasonable. However, the dissent (written by Justice Brennan) makes some good points about the treatment of Islam as compared to other, more familiar, religions and is well worth reading.
As mentioned above, there are a large number of cases involving Islamic religious practice in correctional facilities. I've selected four that illustrate some of the concerns.
Two of the cases deal with the five times daily ritual prayer the salat. Smith v. Elkins, 1992 U.S. App. LEXIS 1050 (9th Cir. 1992), concerns a Muslim inmate who recited the call to prayer and the salat in Arabic and was disciplined for "communicating in a foreign language". The Ninth Circuit Court of Appeals found the prison's rule to be unconstitutionally vague and that it did not apply to prayer, which is not communication between inmates but communication between an inmate and God. Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999) concerns a Muslim inmate who engaged in a silent individual prayer (salat) in the recreation yard and was disciplined for "conducting a religious service in an unauthorized area". The Second Circuit Court of Appeals found this rule to be unconsitutionally vague as well and that silent individual prayer was not a "religious service". In both cases, the regulation itself was valid, but its application to the inmates' performance of salat was inappropriate. If the salat was to be prohibited, regulations should specifically state it.
Another case deals with Ramadan, the month of fasting. In Makin v. Colorado Department of Corrections, 183 F.3d 1205 (10th Cir. 1999), an inmate was inhibited from fasting because he was not allowed to take his meals before dawn and after sunset. He managed to complete the fast anyway by keeping the food from daytime meal deliveries in his cell until the time he was permitted to eat but due to the conditions in his cell, he was only able to keep a small amount of food and thus faced substantial difficulty.
What's striking about this case is that the court (the Tenth Circuit Court of Appeals) looked beyond the actions of fasting to the spiritual aspects:
As the testimony by Imam Kharrubi and Mr. Makin demonstrated, and the district court held, the burden defendants placed on Mr. Makin diminished the spiritual experience he otherwise could gain through Ramadan. This is sufficient to constitute an infringement on his right to freely exercise his religion.Makin, supra at 1213.
The final case that I looked at is Johnson v. Baker, 1995 U.S. App. LEXIS 32117 (6th Cir. 1995). This concerns the relation of the Nation of Islam to orthodox or Sunni Islam. Although the Nation of Islam shares a name with orthodox Islam and some practices, its beliefs are so different from those of orthodox Islam and so contrary to the basic tenets of orthodox Islamic belief that most Sunni Muslims consider the NOI to be a different religion, one that has merely borrowed some Islamic trappings but is not Islam. The plaintiff Johnson, an NOI Muslim, likewise considered the two groups to be so distinct as to constitute two different religions. He therefore requested a separate religious service for NOI Muslims. The Sixth Circuit Court of Appeals denied this request on the grounds that having to attend the orthodox Islamic service did not place a substantial burden on Johnson's exercise of his religious beliefs.
One odd thing about this decision is that it seems to imply that orthodox Muslims believe in reincarnation, which is certainly not the case. This mistake may be the result of misunderstanding Johnson's explanation of the differences between the NOI and orthodox Islam. It does make me wonder if perhaps the court should have investigated those differences a bit more thoroughly, if it made such a basic error.
One tends to think that most Muslims in America are immigrants, from the Middle East, South Asia, and other parts of the Muslim world.
In fact, about 42% of American Muslims are African-Americans (source). This is about 2.5 million people.
We also know that a disproportionate number of African-Americans are in prison. According to Human Rights Watch, 9% of all black adults are in corrections or on parole or probation. For black men between the ages of 20 and 29, the rate jumps to 33%. This translates to blacks comprising 49% of the prison population. Given a total incarcerated population of 2 million, this suggests up to one million African-American prison inmates (source).
It is estimated that as many as 30% of African-American inmates are Muslims and have converted to Islam in prison (source). That makes about 300,000 Muslim inmates. Not only is this a substantial number in and of itself but it comprises about 5% of all Muslims in America and 12% of African-American Muslims.
Ignore African-American Muslims and African-American Muslims in corrections and you are ignoring a major part of the experience of Islam in America.
Island in a Sea of Ignorance provides an excellent overview of the history of Islam in American prisons and the experience of incarcerated Muslims. Behind Bars and Call to Prayer describe the personal experiences of Muslim inmates.