From LaRue v. Matheney (S.D. W. Va. Mar. 4, 2010):
Plaintiff’s original 42 U.S.C. § 1983 complaint in this matter sought reinstatement of certain privileges revoked by MOCC as a result of plaintiff’s refusal to comply with the requirements of the prison’s sex offender treatment program. Plaintiff had previously agreed to participate in MOCC’s Quality of Life program, and had signed an “Individual Therapy Contract” obligating him to participate in treatment sessions and to refrain from certain conduct relating to children and to sexual matters, generally....[Plaintiff] asserts that he is a “Christian Prurient,” and that “sex and nudity is a big aspect of his faith.” He continues as follows:
Plaintiffs contract with Christy Flores, Mental Health therapist, clearly violates his religious doctrines.Plaintiff contends that fellow inmates retain pornography in their cells. However, due to the Plaintiffs Religious beliefs, the defendants has imposed sanctions for not abandoning his faith to comport with the traditional Established Christian faith.
Plaintiff is the founder, owner, and President of Christian Prurient Faith Outreach Ministry.
Defendants have Prohibited the Plaintiff from practicing his faith by enforcing a contract that he has advised the Defendants to not enforce numerous times. This complaint seeks to do what the Defendants adamantly refuse to do without Court intervintion [sic].
Plaintiff has since filed in excess of one hundred documents in support of his claims. The majority of these documents set forth extensive quotations to the Bible, and describe in detail the tenets of plaintiff’s self-created “Christian Prurient faith,” of which he is the sole follower. Plaintiff repeatedly asserts that his religious rights are violated by MOCC’s enforcement of the therapy contract through restricting his privileges and his access to pornographic materials....
In the instant case, plaintiff acknowledges that the burden with which he takes issue was imposed upon him because of a contract into which he entered of his own volition — a contract of a type which the Supreme Court has found to be constitutionally valid. Even assuming that plaintiff sincerely holds the beliefs he professes, the hardships of which he complains are relatively insignificant, are typical of prison life, and are of his own making. His claims must therefore be dismissed for failure to state a claim upon which relief may be granted.
Biolawguy says:
I’m an absolutist on religious freedom (unlike Eugene, whom I’ve gathered does go pretty far but would at some point let the government set some limits), but in order for me to hold such a position, I suppose I have to concede the opposite extreme too: once constitutional due process justly removes your liberties, the first amendment simply cannot apply at all.
Other than by sheer judicial fiat, I can fathom no textual rationale for “gradations” of first amendment freedoms. Thus, those of us who decry slippery slopes and say that liberty is “all or nothing” have to recognize that sometimes it will be “nothing.”
Clarification: If you’re not a prisoner, even an “incidental effect” hardship shouldn’t be accepted.
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March 11, 2010, 5:56 pmOrenWithAnE says:
BLG, it’s unfortunate that you will concede that a warden can confiscate a prisoner’s bible despite allowing books in general. I hope whatever you gain on the ‘other end’ is well worth this price.
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March 11, 2010, 5:59 pmBiolawguy says:
OWAE, unless a case can be made for “cruel and unusual punishment,” I’m afraid I’m probably stuck relying upon / appealing to legislative or executive discretion (which will hopefully not be needless or senseless). I just can’t see a way to make the first amendment apply, without having to admit that it has limits...
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March 11, 2010, 6:05 pmEugene Volokh says:
Biolawguy: What exactly do you mean by saying that you’re an “absolutist on religious freedom”? (I, incidentally, am a supporter of Employment Division v. Smith but also of state-level Religious Freedom Restoration Acts, though I’d suggest that they give courts more flexibility than current RFRAs seem to give. But that’s a separate matter.)
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March 11, 2010, 6:08 pmBiolawguy says:
Eugene,
I read your posts fairly frequently, and readily acknowledged that you do indeed go pretty far for religious freedom...I’d prefer you to most sitting justices for sure! But I think I go further than you, and the peyote case is probably a good example. (I also recall from your book that you use that case as a good example for a “test suite,” and while that’s a helpful exercise, it doesn’t necessarily lead to conceding that such religious restrictions are acceptable.)
I may even go farther than Blackmun’s dissent in that case, because I’ve never been comfortable with the idea that some generic and manipulable notion like “compelling interest” justifies religious suppression (which Blackmun conceded in principle, but then merely disagreed that the particular facts there rose to that level). It’s just too subjective, and I think the essence of the first amendment is indeed to avoid the dangers of rationalizing or “balancing tests” via its use of such broadly sweeping pronouncements. At the very least, I’d say restrictions on religion (or speech content BTW) should be subject to the strictest of all imaginable scrutiny — something objectively definable with minimal wiggle-room — perhaps only in cases of a direct and imminent danger to the rights of others, for example.
I know most people wouldn’t go that far, and I realize it comes at a cost. I guess I just fear the proverbial slippery slope of not holding a so-called “bright red line.”
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March 11, 2010, 6:35 pmEugene Volokh says:
Biolawguy: I just wanted to probe a bit more on what you mean by “religious freedom absolutism.” It obviously can’t be that everyone who objects on religious grounds to a requirement or a prohibition is absolutely entitled to an exemption right? So you say “direct and imminent danger to the rights of others,” but that already gets you away from absolutism, no? Also, can even that be enough?
Say that someone sincerely believes that his religion forbids him from paying taxes. Exemption required, yes?
Or say that someone sincerely believes that he needs to hire people for $5/hour. Even if minimum wage laws are a bad idea, wouldn’t exempting this person from minimum wage laws either give him an unfair advantage over the nonreligious, or lead to many more claims from his competitors that really aren’t sincere at all?
I just wonder exactly how an “absolutist” model of religious freedom, or even one that’s very strongly protective, would actually work. Has any jurisdiction anywhere adopted it? What has its track record been?
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March 11, 2010, 7:04 pmArthur Kirkland says:
Does the sweep of religion you would protect require a claim of belief in a supernatural being, or would any intensely held belief suffice?
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March 11, 2010, 8:39 pmtde says:
Which could be said of the “hardship” of not being able to eat crackers and drink wine the “hardship” of not being able to pray 5 times a day while facing in a certain direction.
You know, depending on your point of view and all...
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March 11, 2010, 10:22 pmDespicableJay says:
Sad that he didn’t state a claim, since RLUIPA (Religious Land Use and Institutionalized Persons Act) creates one for him.
The same statute is used by individuals who want ‘sweat lodges’ and pagan / satanic / viking etc. religious materials in prison, and grants relatively broad protection for freedom to exercise religion in prison.
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March 11, 2010, 11:13 pmreadery says:
The judge could easily have found the prisoner insincere: it would be emininently reasonable for the judiciary to generally discredit prisoners’ claims to have invented new religions while in prison, particularly when their inventions appear suspiciously tailor-made to address pre-existing disputes with prison authorities.
Failing that, the judge could have used the security-related rational-basis test. Commentators on this blog may disagree, but it’s at least arguable (there is at least a rational basis for the view) that pornography tends to create security problems, particularly under prison conditions.
However, i don’t think the “it’s no big deal” standard holds any water under existing first amendment precedent. Most religious rules don’t seem like a big deal to people who aren’t members of the religion. Requiring Jews to turn the lights off on Friday night, Insisting Christians eat the standard cracker rather than a special one on Sunday, and requiring Moslems to eat the pork or go hungry, all seem like no big deal to those outside the religion. Yet a belief that others’ religious requirements are no big deal has never been considered enough to justify a refusal to accommodate them under First Amendment precedent.
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March 11, 2010, 11:54 pmDavid M. Nieporent says:
Worse, if the first amendment doesn’t apply “at all,” then the warden can force the prisoner to convert to Islam.
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March 12, 2010, 6:54 amNorthern Dave says:
“therapy contract through restricting his privileges and his access to pornographic materials....”
In this case it would appear the person has an addiction to child porn and is inventing a religion couched in usual religious terms to attempt to gain access to their addiction.
I guess my question is what if the “religious” freedom the person is demanding is illegal (eg. demanding the right to slay whomever one feels has insulted one’s gods).
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March 12, 2010, 7:04 amBiolawguy says:
Eugene,
To answer your question, I would first note that many of the sorts of issues you raise (e.g. minimum wage) would automatically become moot if libertarian ideology were adopted across the board. In other words, the more the government gets involved in our lives in the first place, the more clashes like this will arise. [To whatever limited extent that taxes would still be legitimately needed even in a libertarian system, I don’t think I could support actually prosecuting somebody for failure to pay due to a sincere religious conviction; any remedy fashioned would have to avoid coercing somebody to participate in violating his own faith...e.g. perhaps simply seizing one’s assets could effectively get around this.]
As for my use of the term “absolute,” what I meant by it is that I oppose leaving unnecessary “gray areas” or room for subjective, discretionary calls. (I call myself an “absolute” right-to-lifer for instance, even though I believe in the life-of-the-mother abortion exception, on the rationale that there there’s a direct clash between two unalienable/absolute rights.) I suppose the engineer in me is willing to call something an “absolute” as long as it’s objectively definable to the extent that it cannot vary by time, context, or perception.
Various libertarian thinkers have posited different formulations and constructs for approaching these issues, but no, I don’t think that any have ever been fully implemented anywhere as of yet.
Arthur,
I would include any sincere matter of conscience (to be phrased more carefully perhaps, but that’s the general idea). I believe the definition of religion should *not* require a deity, and indeed such as bias leads to privileging non-theistic worldviews in our establishment clause analyses.
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March 12, 2010, 9:02 amEugene Volokh says:
Biolawguy: It seems to me that for a theory of the Free Exercise Clause to work, it has to work in our environment where libertarian ideology is not adopted across the board. And of course, a sufficiently hard-core libertarian might think that no actions should ever be prohibited unless they pose a “direct and imminent danger to the rights of others,” whether they constitute religious exercise or not, so to him the Free Exercise Clause wouldn’t really add anything.
On the other hand, “direct and imminent danger to the rights of others” hardly avoids “gray areas” or “subjective, discretionary calls.” What constitutes the rights of others is famously contested. (What about the right, recognized by many state laws but not by most libertarians, not to be discriminated against by private entities in various commercial transactions? The right not to be defamed through knowing lies? The right not to have one’s copyrights infringed? The right not to be subject to “nuisances” that unduly interfere with one’s enjoyment of one’s property?) Likewise, what is “direct” and “imminent” is often quite subjective and discretionary.
It’s no accident, I think, that some people take a “no discrimination against religious practices” view of the Free Exercise Clause (see Smith) and others adopt some sort of “balancing test” or common-law development process for developing religious exemptions from nondiscriminatory laws (which is what “strict scrutiny” under Sherbert and Yoder ended up being), but nearly no-one takes an “absolutist” view or even a particularly bright-line view: I don’t think such a view is tenable when it comes to religious exemptions, at least in our current state where many non-libertarian laws do exist and will continue to exist.
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March 12, 2010, 1:22 pmHerb Spencer says:
The simplest way to get rid of frivolous claims like this one is for federal judges to follow the requirements of the Prison Litigation Reform Act, 42 USC 1997e, and screen all inmate cases, as directed by 28 USC 1915 and 1915A. However, they generally don’t or do so in so cursory a manner that they create their own backlog of these cases. Worse, they then go running off to Congress whining for more judges to get involved in this mess of their own making, which taints them with the appearance of political impropriety, as the 9th Circuit did this past week. And, typically, it’s the 9th Circuit that’s the biggest offender, which is not explained away by the large number of state and federal inmates within its bounds but by its own and its DJs’ refusal to follow the law as written.
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March 12, 2010, 2:00 pmJohn D says:
Where are all the people from this thread?
How is this case different from that of Habibo Jama? So many commenters felt that her complaints were not the slightest bit frivolous.
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March 12, 2010, 3:29 pmCan't find a good name says:
One difference is that we have heard of Ms. Jama’s religious beliefs before, and the number of people who follow or claim to follow them (not just Islam, but the particular modesty restrictions within Islam that Ms. Jama claimed to follow) is in the millions.
By contrast, the “Christian Prurient” plaintiff’s religion raises suspicions that it is more likely to have been made up by the plaintiff for self-serving purposes than to be a sincere religious belief.
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March 12, 2010, 4:45 pmBiolawguy says:
Eugene,
I take your point about “our current state where many non-libertarian laws do exist,” and addressing the 3 aspects of your point separately, I would say:
1) Yes indeed, truly maximizing religious freedom admittedly may require adopting libertarianism across the board as a concomitant, and my hope would be that presupposing the former would help to drive the latter.
2) Similarly, it presupposes a libertarian definition of the “rights of others,” which although “famously contested” on ideological grounds, is nonetheless fairly definable (as I’m sure you’re familiar...).
3) That leaves us with my qualifiers like “direct” and “imminent.” This may indeed be the most challenging prong of my position, and I’m open to trying to find a more rigid formulation. However, I still submit that such a standard is far less subjective than “compelling interest,” etc.
I realize we differ in our ideological premises; I merely suggest that it’s not somehow a logical or logistical impossibility to remove (most if not all) current subjectivity from these analyses.
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March 12, 2010, 4:46 pm