Jail Guard's Required Training in Treatment of LGBTQI+ Inmates Did Not Violate His Free Exercise Rights

In Goodknight v. County of Douglas, (D OR, Aug. 6, 2024), an Oregon federal district court rejected religious discrimination claims brought by a county jail guard who objected to required LGBTQI Community Training. The training was impelled by the recently enacted federal Prison Rape Elimination Act.  According to the court:

Plaintiff alleges this Training required employees “to affirm and validate homosexual unions and the self-proclaimed ‘transgender,’ ‘non-binary,’ or ‘genderqueer’ identities of AICs and fellow employees.”...

Plaintiff concluded by confirming his believe that “PREA standards demands [sic] we deny, [sic] God, science, and the common sense verified by our very eyes. This is a Pandora’s box of perversion I refuse to help open. I appeal to you one last time, please repent of this sinful path for the sake of the county, inmates, and my fellow deputies....

Rejecting plaintiff's claims under Title VII and state law, the court said in part:

Despite Plaintiff’s attempt, intentionally or otherwise, to conflate private citizen cases with public employee cases, the fact that the dispute here concerned training regarding how Defendant processed and housed LGBTQI+ individuals—i.e., that the Training concerned how Defendant wanted Plaintiff to perform his basic job duties—demonstrates Plaintiff’s free speech claim necessarily fails. ... 

Plaintiff’s specific factual allegations, along with the Court’s own common sense, confirm that the speech here concerned nothing more than Plaintiff’s dispute with his supervisors over how to perform his job when dealing with certain AICs....

Plaintiff alleges Defendant violated his rights under the First Amendment’s Free Exercise clause when Defendant “lent it’s power to one side in a controversy over religious dogma – specifically, the controversy over whether what [sic] constitutes respectful treatment of persons who self-identify as LGBTQI+.”... This argument is meritless.  ...

Plaintiff’s attempt to conflate ‘government employers forcing their employees’ with “the government forcing its citizens’ ignores longstanding, black‐letter law recognizing that “[a] public employer ‘may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.’”

Louisiana Governor Signs Women's Safety and Protection Act, Rejecting Gender Identity Classifications

On June 3, Louisiana Governor Jeff Landry signed HB 608, the Women's Safety and Protection Act (full text) into law. The law states as part of its purpose:

To provide protections for women and girls against sexual assault, harassment, and violence in correctional facilities, juvenile detention facilities, domestic violence shelters, dormitories, and restrooms, or where women have been traditionally afforded safety and protection from acts of abuse committed by biological men.

Where there are multi-occupancy restrooms, changing rooms or sleeping quarters, the new law requires transgender men and transgender women to use only those facilities that conform to their biological sex. The limitation applies to public schools, domestic violence shelters, correctional facilities and juvenile detention facilities. The new law also provides a detailed biological definition of male and female that is to be applied to any state law or administrative rule that refers to an individual's sex. It additionally provides:

"Sex" means an individual's biological sex, either male or female, as observed or clinically verified at birth.  Gender identity and other subjective terms shall not apply to this Part and shall not be used as synonyms or substitutes for sex.

The new law goes on to provide in part:

Notwithstanding any other provision of law to the contrary, no governmental agency ... shall prohibit distinctions between the sexes with respect to athletics, correctional facilities, juvenile detention facilities, domestic violence shelters, or other accommodation where biology, safety, or privacy are implicated and that result in separate accommodations that are substantially related to the important government interest of protecting the health, safety, and privacy of individuals in such circumstances.

The law creates a cause of action for injunctive relief or damages to anyone who suffers direct or indirect harm from a violation of the Act. It provides:

It is a rebuttable presumption that requiring an individual to be housed with members of the opposite sex at a domestic violence shelter, juvenile detention center, corrections facility, or public school that is subject to the provisions of this Part is inherently discriminatory and is a cognizable harm to biological women under this Part.

Louisiana Illuminator has more details on the bill. ADF issued a press release announcing the governor's signing of the bill.

Civil Rights Commission Holds Briefing on Prisoners' Religious Freedom

Last Friday, the U.S. Commission on Civil Rights held a lengthy hearing on The Federal Role in Enforcing Religious Freedom in Prisons. A video of the full hearing is available on YouTube. In announcing the hearing, the Commission said:

The U.S. Commission on Civil Rights will hold a briefing on, Friday, May 17, 2024, on whether prisoners’ religious freedom rights are being protected and enforced in accordance with constitutional and statutory provisions. This is an update to the Commission’s 2008 statutory enforcement report, Enforcing Religious Freedom in Prison.

Specifically, the Commission will review the constitutional and federal statutory provisions of the First Amendment, the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), the Religious Freedom Restoration Act of 1990 (RFRA), the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and the Prison Litigation Reform Act (PLRA).

At this public briefing, the Commission will hear from subject matter experts such as government officials, religious leaders, academics, prisoners’ rights advocates, religious liberty organizations, and legal experts. The Commission will accept written materials from the public for consideration as we prepare our report....

DOJ Sues California Prisons for Failing to Accommodate Officers' Religious Beard Requirements

The Department of Justice this week filed suit in a California federal district court seeking to enjoin the California correctional system from requiring its peace officers to be clean shaven in contravention of their sincerely held religious beliefs.  The problem arose for Muslim and Sikh correctional employees when they were required to meet the conditions for wearing tight-fitting respirators.  The complaint (full text) in United States v. California Department of Corrections and Rehabilitation, (ED CA, filed 3/25/2024), contends that the Department of Corrections has not attempted to accommodate the peace officers' concerns by offering them positions in the Department that do not require wearing of respirators or by offering alternative respirators that could be worn with beards.  The complaint alleges in part:

The Charging Parties allege that CDCR has discriminated against them on the basis of religion in violation of Title VII, 42 U.S.C. § 2000e(a)(2), by: a. Failing to provide a religious accommodation;  b. failing to adequately engage in the interactive process with the Charging Parties, including by failing to make good faith efforts to consider whether alternative accommodations will eliminate the conflict between the Charging Parties’ religious beliefs and CDCR’s clean  shaven policy; and c. failing to demonstrate that implementing the alternative accommodations proposed by the Charging Parties would pose an undue hardship.

The Department of Justice issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

6th Circuit: Michigan Prisons Must Recognize Christian Identity As A Religion

In Fox v. Washington, (6th Cir., June 26, 2023), the U.S. 6th Circuit Court of Appeals held that the Michigan Department of Corrections had not adequately justified its refusal to recognize Christian Identity as a religion for purposes of the Michigan prison system. The court had previously remanded the case for the state to demonstrate that it met the requirement under RLUIPA that it has a compelling governmental interest in not recognizing Christian Identity, and that it has employed the least restrictive means in doing so. The state focused on the safety concerns growing out of the white supremacist ideology of the religious movement. The 6th Circuit concluded that this is insufficient, in part because the prison system had not considered alternatives short of non-recognition, saying in part:

Begin with the Department’s “policy directive” for “religious beliefs and practices of prisoners.” It plainly does not allow unfettered group worship simply because the Department recognizes a religion....

RLUIPA ... requires an individual inquiry even when group worship is the sought accommodation.... Indeed, each plaintiff testified that he was nonviolent and would prevent others from acting aggressively at group services. The Department offered silence in response—it did not, for example, present any evidence that plaintiffs or any other inmates who follow Christian Identity are violent. True, Bechler linked Christian Identity to racial violence outside the prison setting. But nothing in the record links plaintiffs to any prison violence, racially motivated or otherwise. In short, the Department presented evidence regarding Christian Identity as a whole, but not concerning plaintiffs. In failing to conduct an individualized inquiry, the Department’s decision-making process was deficient....

Although the record links Christian Identity to white nationalist groups, nothing in the record addresses how many Christian Identity adherents are members of those groups. The Department has the burden to show that refusing to recognize Christian Identity is the least restrictive means to advance facility security.... It cannot meet that burden by simply gesturing toward some Christian Identity adherents being members of white supremacist groups and rely on this court to fill in the gaps....

AP reports on the decision.

Kansas AG Says Previously Modified Birth Certificates Must Be Changed Back to Reflect Biological Sex

In April, the Kansas legislature overrode Governor Kelly's veto of Senate Bill 180 which defines "sex" as biological sex for purposes of various state laws, rules and regulations. Yesterday, Kansas Attorney General Kris Kobach issued Attorney General Opinion 2023-2 (full text) which interprets the new law as requiring birth certificates that have previously been modified to now be changed back to reflect the individual's sex assigned at birth. Similarly, driver's license records that have been modified must be changed back and future licenses must be issued on the basis of biological sex. However, the individual may present themselves as the opposite sex in their driver's license photo. The Attorney General also concluded that the new law does not apply to housing decisions by state correctional facilities since those decisions are not mandated by state rules or regulations.

Clergy Sue Federal Penitentiary To Obtain Physical Contact With Death Row Inmates

Suit was filed last week in an Indiana federal district court by two ministers who regularly visit death row inmates in a federal penitentiary in Indiana. One plaintiff is an Episcopal minister and the other in the Unitarian Universalist Church and the Christian Church (Disciples of Christ). The complaint (full text) in Eiler v. Complex Warden, Federal Correctional Complex, Terre Haute, (SD IN, filed 4/25/2023), alleges violations of the Religious Freedom Restoration Act, saying in part:

The plaintiffs have sincere religious beliefs that at times during prayer they must be able to touch the prisoners and the prisoners desire that this physical contact occur during prayer. However, they are precluded from touching the prisoners by defendant’s policy that allows them only non-contact visitation. This policy burdens plaintiffs’ religious exercise without justification.

The complaint also alleges that barring physical contact with prisoners as they are being executed violates plaintiffs' free exercise rights under RFRA. WFIU reports on the lawsuit.

Health Care Company Will Pay $75,000 To Settle Christian Nurse's Religious Accommodation Claim

The EEOC announced yesterday that Wellpath, a provider of health services in correctional institutions, has agreed to settle a religious discrimination claim brought by the EEOC on behalf an Apostolic Pentecostal Christian nurse who was hired for a Texas jail.  According to the EEOC:

Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Under the settlement agreement, Wellpath will pay the nurse $75,000 in back pay and damages, and will provide anti-discrimination training and notice of rights to employees.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

Judge Jack Weinstein Dies At Age 99-- Supporter of Jewish Group's Criminal Justice Reform Efforts

U.S. federal district Judge Jack B. Weinstein died on Tuesday at the age of 99. He served on the Eastern District of New York for 53 years-- until he took inactive senior status in 2020. The New York Times describes Weinstein as "a legal scholar and famously independent federal judge in Brooklyn who led the legal system into an era of mass tort litigation." Chabad.org has published a lengthy account of Weinstein's support for the Aleph Institute, Chabad-Lubavitch's organization that advocates for criminal justice reform.

Russian Opposition Leader Navalny Sues Prison Officials To Obtain A Quran

According to reports from AP and The Hill, imprisoned Russian opposition leader Alexei Navalny is suing prison officials to obtain access to volumes of the Quran with commentary that he purchased. AP says in part:

Navalny has faced criticism over the years for using nationalist rhetoric regarding migrants, many of whom arrive in Russia from predominantly Muslim nations in Central Asia.

He said Tuesday he had realized his “development as a Christian requires studying the Quran,” adding that he decided to become “the Quran champion among Russian non-Muslim politicians.”

Prison authorities say that they must screen all books for extremism before making them available to prisoners, and that this will take three months. Navalny is in the midst of a hunger strike and prison officials are threatening to force feed him. 

New Report On Muslim Inmates In State Prisons In U.S.

In a press release last week, Muslim Advocates announced the release of a report documenting the size of the Muslim population in state prisons in the U.S. and the extent to which their religious rights are accommodated. The 68-page report (full text) titled Fulfilling the Promise of Free Exercise for All: Muslim Prisoner Accommodation in State Prisons concluded in part:

[O]ur research shows that within the 34 states that provided data in response to our requests, Muslims are overrepresented in state prisons by a factor of eight relative to the general population. In some state systems, Muslims are overrepresented by a factor of closer to eighteen, with more than 20 percent of prisoners identifying as Muslim. The absolute number of Muslim prisoners has also increased over time, even as prison populations in many states have tended to decrease in the last few years. Despite Muslims constituting a significant and growing share of prisoners, many state departments of correction still have policies that are outdated, under-accommodating, or non-accommodating of Muslim prisoners.

The Appeal discusses the report.

Federal Prison With Special Accommodations For Jewish Inmates

Today's New York Times reports on the religious accommodations for Jewish inmates in the prison at which President Trump's former lawyer Michael Cohen hopes to serve his three year sentence:

What the minimum-security camp at the Federal Correctional Institution in Otisville, N.Y., does offer is a rarity in the federal prison system: a full-time Hasidic chaplain who oversees a congregation of dozens of Jewish inmates who gather for prayer services three times a day.

“For a Jewish person, there is no place like Otisville,” said Earl Seth David, 54, a former inmate who attended kosher meals, religious classes and weekly Shabbat services in the prison shul, a shared space where the Torah scrolls are locked up every night....

Orthodox inmates wear fringed vests known as zizit under their green prison uniforms. Prison work shifts are scheduled around daily prayer sessions and Sabbath observances. Before many holidays, the men are taken by prison bus to a nearby town for traditional mikvah baths....

Over the years, federal officials have “sort of carved this place out as a special location to put Jewish inmates,” said Benjamin Brafman, a prominent defense lawyer who has represented numerous defendants who have requested Otisville.

Popularity of Kosher Food Requests In Prisons

Tablet Magazine yesterday reports on the surprising popularity of kosher food requests in prisons, saying in part:

According to the 2013 numbers, Jews are seven percent of the state prison population of New York; the fourth largest religious denomination after Protestant, Catholic and Muslim (in that order). If the numbers were accurate it would mean that nearly twice as many Jews were locked up that year as members of the Nation of Islam. But the truth is that many inmates lie and claim to be Jewish once they enter the prison system. And why do they do it? Not as a hedge against the impending arrival of the Moshiach. They do it for the kosher food.

President Meets With Inner City Pastors

Yesterday afternoon, President Trump met at the White House with a group of inner city pastors.  The White House has posted a transcript of remarks by the President and a number of the pastors at the meeting.  They focused primarily on issues of economic development and prison reform.

Settlement Reached In Correctional Employee's Suit Over Religious Curriculum for Inmates

The state of Tennessee last month agreed to a settlement of $45,948, plus up to $35,000 in attorneys' fees, in a suit that was brought by an employee of a state corrections agency who complained that the program he was required to teach to inmates was heavily religious. The program was based on the book This Ain’t No Practice Life by Michael Burt  Also under the agreement, the employee will leave the agency next June. (Full text of settlement agreement).  The agreement followed a federal district court's entering of a preliminary injunction in favor of the employee last February.  In Baker v. State of Tennessee, (MD TN, Feb. 17, 2017), the court, finding a strong likelihood of an Establishment Clause violation, said:

The fact that the Coaching Program as a whole may have a secular purpose of rehabilitating TDOC inmates and preparing them for release and reentry does not mitigate the fact that there is likely no secular purpose to the inclusion of religious-based content in the Coaching Program’s materials.

Reporting on the settlement, WSMV News adds that the challenged program, which has now been canceled, cost the state $300,000 to implement.

Scotland Investigates Upsurge In Prisoner Requests For Kosher Meals

The Forward reported yesterday that in Scotland, the Inspectorate of Prisons has begun an investigation into why there has been a huge upsurge in inmates requesting kosher meals.  The increase has added $313,000 per year to the cost of operating Scottish prisons.  According to the news report:

Inmates are believed to have started asking for kosher food after watching “Orange is the New Black,” the American television show in which a character named Cindy Hayes, played by Adrienne Moore, converts to Judaism to get “better quality food,” as she explains it in the series.

At one Edinburgh prison, 111 prisoners are being served kosher meals, and it is thought that hundreds of prisoners across the United Kingdom have applied to change their religion to Judaism since the episode aired in 2015.

Nebraska Cuts Back On Religious Accommodation of Inmates

As reported by the Lincoln Journal Star, on June 2, the Nebraska Department of Correctional Services issued a Memo (full text) cutting back on its accommodation of religious practices of inmates in a manner that appears to particularly impact Native American practitioners.  According to the Memo, many Native American practitioners also practice Catholicism at the same time, requesting a Native American Bandanna and a Rosary.  Under the Memo, an inmate must declare a single religion in order to receive religious property (or declare he is spiritual but has no religious tradition). As of November 1, inmate purchases of religious items will be limited to the 26 items listed in an Appendix to the Memo. Inmates will be required to store their religious property in a 6 quart plastic storage box that they must purchase for $1.65. The state will end its policy of providing $50 per year to each accommodated religion, and will no longer provide rock and wood for sweat lodge ceremonies. Rock and wood will be available only through outside donations. Last year the state reduced from 2 hours to 1 hour per week the time Native American inmates can spend in sweat lodge ceremonies.

British Report On Islamist Extremism In Prisons

On Monday, Britain's Ministry of Justice released a summary of the main findings of a classified report on Islamist extremism in British prisons. (Full text of Summary).  The study of the issue was commissioned last year and the classified report was presented in March. The study found that Islamist extremism is a growing problem in prisons.  The Summary's section on Muslim Chaplaincy in prisons reports in part:

Throughout the review the team emphasised the importance of faith to prisoners, and its potential to transform lives for the better. Its premise was that Islamism – a politicised, expansionist version of Islam – is more ideology than faith, and is driven by intolerance and anti-Western sentiment.

There are around 69 full time, 65 part-time and 110 sessional Muslim prison chaplains. About two thirds follow the Deobandi denomination, often regarded as a traditional and conservative interpretation.... 

The review concluded that while most chaplains were dedicated members of staff and did good and useful work, there is also evidence of a weak understanding and effective approach to IE.

[Thanks to Law & Religion UK for the lead.] 

Federal Prisons Will No Longer Serve Pork Products

The Washington Post reported yesterday that federal Bureau of Prisons is removing all pork products from its national menu for federal inmates. Pork producers are distressed at the decision that was based on a survey of inmates' food preferences, as well as on cost factors.However Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, predicted that the decision "will stoke the fires of Islamophobia based on the usual conspiracy theories." [Thanks to David Orinoff for the lead.]