City of Boerne v. Flores and its Impact
on Prisoners' Religious Freedom
"The essence of all religions is love, compassion, and tolerance. Kindness is my true religion .... Love, compassion, and tolerance are necessities, not luxuries. Without them, humanity cannot survive."'
I. INTRODUCTION
Prisoners' constitutional rights have been restricted due to concerns for
federalism, separation of powers, 2 restrictions resulting from incarceration, and from concerns for security, maintenance of order, and rehabilitation of inmates.3 Courts have recognized that balancing the precious constitutional liberty rights of prisoners and needs for necessary restrictions in
the prison setting, coupled with concerns for separation of powers and
federalism is "a task of inordinate difficulty."4 It must be noted that many
"beneficial changes have been effected by the courts over the vigorous
objections of corrections officials .... [T]he gains made in the safe and
efficient administration of... prisons may be attributed to the anonymous
cutting edge of [the courts'] efforts to
professionals who daily toil at the
5
institutions."
penal
...
improve
Incarcerating individuals who have committed illegal acts for the purpose of punishment may be justified; however, this justification does not
allow society to lock inmates' minds away "to atrophy during the period
of [their] incarceration." 6 This Comment explores the importance of re1.
His Holiness The Dalai Lama, Love Compassion, and Tolerance, in FOR THE
LOVE OF GOD 3, 3 (Benjamin Shield & Richard Carlson eds., 1997).
See Daniel J. Solove, Faith Profaned: The Religious Freedom Restoration
2.
Act and Religion in the Prisons, 106 YALE L.J. 459, 466 (1996). The problems in
prisons "require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government ....Moreover,. . . federal courts have a further reason
for deference to" authorities of state penal institutions when considering problems in
state prisons under the doctrine of federalism. Procunier v. Martinez, 416 U.S. 396,
405 (1974).
3. See Mary A. Schnabel, Comment, The Religious Freedom Restoration Act: A
Prison'sDilemma, 29 WILLAMETTE L. REV. 323, 323 (1993).
4. Abdul Wali v. Coughlin, 754 F.2d 1015, 1018 (2d Cir. 1985).
5.
Id.
6. Id. at 1034.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
ligion for prisoners' spiritual rehabilitation, and examines standards of
review for prisoners' free exercise claims, applied by courts in light of the
recent United States Supreme Court decision in City of Boerne v. Flores,
in which the Court held the Religious Freedom Restoration Act unconstitutional.7 Part II examines the role of religion in society generally and in
the prison context. Next, in Part III, a brief history of cases involving
prisoners' free exercise rights will be traced, followed by a discussion of
the Supreme Court decision in City of Boerne v. Flores. Finally, Part V
concludes this Comment, analyzing the impact City of Boerne v. Flores
will have on the standards of review for prisoners' religious rights and
identifying the most appropriate standard of review for prisoners' free
exercise claims.
II.
WHAT IS RELIGION
A. The Role of Religion in Society
Dostoevsky8 wrote in "The Brothers Karamazov, that "[t]here would be
no civilization at all if God had not been invented." 9 It is remarkable that
human beings have always been practicing religions, after all, "how can
we understand man if we do not understand religion?"' 0 As Voltaire"
remarked "'the simple worship of a God preceded all the systems of the
7.
521 U.S. 507 (1997).
8.
Fyodor Mikhailovich Dostoevsky (1821-81) was a Russian novelist and essayist. See 1 THE ENCYCLOPEDIA OF PHILOSOPHY 411 (Paul Edwards ed., 1967).
9.
FYODOR DOSTOEVSKY, THE BROTHERS KARAMAZOV 134 (Richard Pevear &
Larissa Volokhonsky trans., Vintage Classics 1990).
Fyodor Pavlovich asks his son, Ivan, who is an atheist:
"Hm. More likely Ivan is right. Lord, just think how much faith, how
much energy of all kinds man has spent on this dream, and for so many
thousands of years! Who could be laughing at man like that? Ivan?
For the last time, definitely: is there a God or not? It's the last time I'll
ask."
"For the last time-no."
"Then who is laughing at mankind, Ivan?"
"Must be the devil," Ivan smirked.
"And is there a devil?"
"No, there is no devil, either."
"Too bad. Devil knows, then, what I wouldn't do to the man who
first invented God! Hanging from the bitter aspen tree would be too
good for him."
"There would be no civilization at all if God had not been invented."
"There wouldn't? Without God?"
Id.
10. WILL DURANT, THE STORY OF PHILOSOPHY 372 (1961).
11. Francois-Marie Arouet de Voltaire (1694-1778) was a French philosopher.
See 8 THE ENCYCLOPEDIA OF PHILOSOPHY, supra note 8, at 262.
Summer, 1999]
CITY OFBOERATE V FLORES
world.' ' 12 It seems that the concept of religion is so fundamental for human beings, even those who are atheist, that it is imperative to examine
the meaning of religion in our society.
George Santayana 13 wrote that fear and imagination first made human
beings believe in gods. 14 He observed that "'[fJaith in the supernatural is a
desperate wager made by man at the lowest ebb of his fortunes ...[i]t is
pathetic to observe how lowly are the motives that religion, even the highest, attributes, to the deity, and from what a hardpressed and bitter existence they have been drawn."",15 Furthermore, Santayana noted that
studying the meaning of religion "'would bring the skeptic face to face
with the mystery and pathos of moral existence[, and such studies] would
make [humans] understand16why religion is so profoundly moving and in a
sense so profoundly just."'
Similarly, Francis Bacon, 17 who was "an undeceivable analyst of human
nature,"'18 wrote on the importance of religion, stating that "'[a] little philosophy inclineth a man's mind to atheism; but depth in philosophy
bringeth men's minds about to religion." ' 19 Bacon also observed that
20
"'troubles and adversities do more bow men's minds to religion.',
Moreover, Rene Descartes, 21 "father of the subjective and idealistic tradition in modem philosophy" stated that "[a]ll the world, and every body, is
a machine; but outside the world is God, and within the body is the spiri-
12.
DURANT, supra note 10, at 184 (quoting Francois M. Voltaire, Theist).
See 7 THE
13. George Santayana (1863-1952) was a philosopher.
ENCYCLOPEDIA OF PHILOSOPHY, supra note 8, at 282.
14. DURANT, supra note 10, at 373.
15. Id. (quoting GEORGE SANTAYANA, REASON IN SCIENCE 297 and REASON IN
RELIGION 28, 34 (1913).
16. Id. at 372 (quoting SANTAYANA, REASON IN RELIGION, supra note 15, at 4).
Similarly, Goethe observed that:
The faculty of ennobling every object of sense and of infusing the life
of the spirit into dead matter is the surest guarantee of our more than
earthy origin. However much we are attracted and fascinated by the
myriad phenomena of this earth, an inner longing compels us again and
again to turn our eye heavenward because an inexplicable deep feeling
convinces us that we are citizens of those worlds that mysteriously
shine above us and that we shall someday return thither.
GOETHE: WISDOM AND EXPERIENCE-SELECTIONS BY LUDWIG CuRTIUS 46 (Herman
J. Weigand trans. & ed., 1964).
17. Francis Bacon (1561-1626) was an English philosopher.
ENCYCLOPEDIA OF PHILOSOPHY, supra note 8, at 235.
18. DURANT, supra note 10, at 89.
19. Id. (citation omitted).
20. Id. (citation omitted).
21. Rene Descartes (1596-1650) was a French philosopher.
ENCYCLOPEDIA OF PHILOSOPHY, supra note 8, at 344.
See I THE
See I THE
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
tual soul., 22 Modern societies appear to have become more materialistic
and less religious. Human beings, however, still need religion, since religion and morals must always coexist. 23 Religion has provided a "powerful corrective to fragmentation and excessive detachment of the intellectual enterprise." 24 Religious conviction and commitment have roots "in
natural impulses and in the natural existence of man." 25 Among these
roots, which are found in human tendencies, are the "impulses of wonder
and repentance. 26 As such, "[i]t is the function of religion to establish a
peace between the laws of [the] spiritual realm and the sensuous nature of
man. Morality tried to bring this about, but it lost its27 force with the attempt to reduce it to a theory of calculated happiness."
Justice O'Connor pointed out in her dissenting opinion in City of
Boerne v. Floresthat "[t]he Religion Clauses of the Constitution represent
a profound commitment to religious liberty. ' 28 It has been repeatedly emphasized that "freedom of speech . . . has special constitutional status.
Given the centrality of freedom of speech and religion to the American
concept of personal liberty, it is altogether reasonable to conclude that
both should be treated with the highest degree of respect. 2 9
[The] desire to accommodate faiths at odds with the government is the most
important distinguishing feature of American church-state separation ....
[T]he First Amendment extended special and emphatic constitutional protection to the full and free exercise of religion . . . to ensure that "the laws
may always be as extensibly accommodated to [religious minorities], as a
due regard to the protection and essential interests of the nation may justify
and permit." Translated into modern constitutional doctrine, [the] history
supports the view that impositions on religious conscience may be enforced
30
only if they serve the fundamental interests of the state.
22.
DURANT, supranote 10, at 117.
23. See TAKESHI UMEHARA & JYAKUCHO
160-67 (Kodansha 1997).
24.
SETOUCHI,
TSUYOKU IKIRU KOKORO
REINHOLD NIEBUHR, THE COMMITMENT OF THE SELF AND THE FREEDOM OF
THE MIND 27 (1954).
25. Id.
26. Id.
27. GOETHE, supra note 16, at 46.
28. City of Boerne v. Flores, 521 U.S. 507, 564 (1997) (O'Connor, J., dissenting).
29.
30.
Id (O'Connor, J., dissenting).
Michael W. McConnell, Freedom from Persecution or Protection of the
Rights of Conscience? A Critique of Justice Scalia's HistoricalArguments in City of
Boerne v. Flores, 39 WM. & MARY L. REV. 819, 832 (1998) (quoting Letter from
George Washington to the Religious Society Called Quakers (Oct. 1789), in GEORGE
WASHINGTON ON RELIGIOUS LIBERTY AND MUTUAL UNDERSTANDING 11
Frank Humphrey ed., 1932)) (footnotes omitted).
(Edward
Summer, 1999]
CITY OFBOERATE V FLORES
When courts discuss religion in the First Amendment context, "most of
the time [the word is used] unreflectively, as if it were completely selfdefining." 31 Courts have attempted to define "religion," although its definition has not yet clearly been established.32 Legal scholars have also
proposed a wide variety of definitions for "religion" in the judicial context.33 "Religion" can be defined broadly or narrowly, although it is almost impossible to define it in a way everyone agrees.34 Regardless of its
definition, it is universally agreed upon that religions play a continuing
role in the search for fundamental answers to the meaning of existence;
thus, a person's religious freedom must be given the most careful protection. 5
B. The Rehabilitation Theory of Justifying Punishment and the Role of
Religion in Prisoners'Rehabilitation
The rehabilitation or reformation theory of punishment has long been
recognized together with other theories of punishment such as prevention
(intimidation), restraint (incapacitation, isolation, or disablement), deterrence (general prevention), education, and retribution (revenge or retaliation).36 Most contemporary jurists define the rehabilitation theory as "returning the criminal to an acceptable level of social conformity and functionality. ' 37 There has been controversy over the rehabilitation theory of
punishment with regards to its effectiveness in reducing an offender's
further criminal activity.38 Since the 1960s, critics of the rehabilitation
theory have been referring to the weaknesses and limitations of rehabilitation. 39 Nonetheless, rehabilitation should be reaffirmed in corrections for
the following reasons:
1. Rehabilitation is the only justification of criminal sanction that obligates
31.
Eduardo Penalver, Note, The Concept of Religion, 107 YALE L.J. 791, 791
(1997).
32. See id.
33. See id. at 793.
34. See id. See also Mark Modak-Truran, The Religious Dimension of Judicial
Decision Making and the De Facto Disestablishment,81 MARQ. L. REV. 255, 288 n. 5
(1998).
35. See Penalver, supra note 31, at 807.- "The ability of religions to fulfill a
deeply rooted human longing makes them particularly precious and worthy of protec-
tion." Id,
36. See generally WAYNE LAFAVE & AUSTIN SCOTT,
JR., CRIMINAL LAW
(1986).
37. John E. Witte, Jr. & Thomas C. Arthur, The Three Uses of the Law: A Protestant Source of the Purposes of CriminalPunishment?, 10 J.L. & RELIGION 433, 433
(1993).
38. See Michael Welch, Ph.D., Rehabilitation:Holding Its Ground in Corrections, 59 FED. PROBATION 3, 3-4 (1995).
39. See id. at 4.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
the state to care for an offender's needs of welfare.
2. The ideology of rehabilitation provides an important rationale for opposing the conservative's assumption that increased repression will reduce
crime.
3. Rehabilitation still receives considerable support as a major goal of the
correctional system.
4. Rehabilitation has historically been an important motive underlying re40
form efforts that have increased the humanity of the correctional system.
It is important, therefore, to reaffirm rehabilitation and "[a]ppreciate the
[h]umane [p]otential of [r]eligion" in reaction to the conservative "tough
on crime" criminal justice policies which are often characterized as a form
of repression of the disadvantaged and less powerful.
Plato wrote more
than 2000 years ago that "[w]e ought not to repay injustice with injustice
or to do harm to any man, no matter what we may have suffered from
him .,2
It is imperative that religion be recognized as serving a rehabilitative
function in prison, because of the nature and the roll religion possesses as
a moral and spiritual guide. 3 Further, religion has been seen as playing an
important role in promoting positive social behavior."
In the restrictive atmosphere of prison, constitutional guarantees that may be
taken for granted in free society assume far greater importance. The opportunities to pursue religious beliefs, to read a book, to write ....These simple acts nourish the prisoner's mind, provide a respite from "the blankness
45
and bleakness of his environment," and help to cultivate rehabilitation.
40. Id. at 6 (citing F. CULLEN & K. GILBERT, REAFFIRMING REHABILITATION
(1982)).
41. Id. at 7 (citing F. CULLEN & J. WOZNIAK, Fightingthe Appeal of Repression,
in CRIME AND SOCIAL JUSTICE 18, 23-33 (1982)).
42. Jean Hampton, The Moral Education Theory of Punishment, reprinted in
CRIME AND PUNISHMENT, PHILOSOPHIC EXPLORATIONS 356 (Michael J. Gorr & Sterling Harwood eds., 1984) (quoting PLATO, CRIO,X, 49 (n.p., n.d.)).
43. See Melvin Gutterman, Prison Objectives and Human Dignity: Reaching a
MutualAccommodation, 1992 BYU L. REv. 857, 910 (1992).
44. See C. Daniel Batson, Sociobiology and the Role of Religion in Promoting
ProsocialBehavior: An Alternative View, 45 J. OF PERSONALITY & SOC. PSYCHOL.
1380, 1380 (1983).
Building on the sociobiological literature, as well as on some recent
psychological theory and research, it is suggested, first, that an empathically mediated kin-specific altruistic impulse may be part of our
genetic heritage. It is suggested, second, that one function of religion
may be to extend the range of this limited, kin-specific altruistic impulse through the use of kinship language and imaginary. Such language may provoke "brotherly love" and thus compassionate action for
people far beyond the kinship circle.
Id.
45. Gutterman, supra note 43, at 881 (citing Wolfish v. Levi, 573 F2d 118, 129
Summer, 1999]
CITY OFBOERATE V FLORES
Voltaire wrote on the rehabilitative and preventive functions of religion,
by way of defending his religious belief against his atheist friends, stating
"'[y]ou yourself say that belief in God . . . has kept some men from
crime; this alone suffices me. When this belief prevents even ten assassinations, ten calumnies, I hold that all the world should embrace it. ' ' A6 It is
suggested that through religion, inmates "'may reclaim [their] dignity and
reassert their individuality.',47 Religion plays an especially important role
in the prison program because it "'represents a rich resource in the moral
and spiritual regeneration of mankind." 14
III. A BRIEF HISTORY OF CASES CONCERNING PRISONERS'
RELIGIOUS LIBERTY
The First Amendment of the United States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."49 There is an undeniable link between First Amendment rights, which have been valued as expressional
5
liberties,5 and the serious concern for protecting intellectual liberty. I
While prisoners do retain constitutional rights, it has been argued that
prisoners possess a limited right to free expression of religion because
"'[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."'' 52 Furthermore, early courts held that
(2d Cir. 1978), rev'dsub nom. Bell v. Wolfish, 441 U.S. 520 (1979)).
46. DURANT, supra note 10, at 184 (quoting Francois M. Voltaire).
47. Gutterman, supra note 43, at 911 (quoting Barnett v. Rodgers, 410 F.2d 995,
1002 (D.C. Cir. 1969)).
48. O'Lone v. Estate of Shabazz, 482 U.S. 342, 362 (1987) (Brennan, J., dissenting) (quoting AM. CORRECTIONAL ASs'N, MANUAL OF CORRECTIONAL
STANDARDS xxi (3d ed. 1966)). In Teterud v. Bums, 522 F.2d 357 (8th Cir. 1975), a
prisoner, a Cree Indian, was forced to cut his hair which had to be kept long for the
religious reasons. See William Norman, Note, Native American Inmates and Prison
Grooming Regulations: Today's JustifiedScalps: Iron Eyes v. Henry, 18 AM. INDIAN
L. REV. 191, 204 (1993). "The psychiatrist suggested that providing [the prisoner] an
exemption under the [hair] regulation would raise [his] self-esteem through instilling
pride in his heritage and religion." Id. at 202-03 (citing Teterud v. Gillman, 385 F.
Supp. 153, 155 (S.D. Iowa 1974)). "In addition . . . , a former corrections official
agreed that allowing [the prisoner] to grow his hair would be a determinative factor in
his rehabilitation." Id.
49. U.S. CONST. amend. 1.
50. See Abdul Wali v. Coughlin, 754 F.2d 1015, 1034 n.10 (2d Cir. 1995) (citing
Whitney v. California, 274 U.S. 357, 375 (1927)).
See generally ROBERT L.
CALHOUN, THE HISTORICAL RELATIONS BETWEEN RELIGION AND INTELLECTUAL
FREEDOM (1954).
51. See Abdul Wali, 754 F.2d at 1034 n.10.
52. O'Lone, 482 U.S. at 348 (Brennan, J., dissenting) (quoting Price v. Johnston,
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
a prisoner was a "slave of the state", possessing no constitutional rights.5 3
"During the first half of the twentieth century this view was moderated",54
but courts still maintained a hands-off attitude toward prisoners' rights
claims, and did not scrutinize those claims "because of concerns about
federalism and sepaiation of powers, as well as a lack of familiarity with
penology and prison administration. 5 5
Beginning with the Warren
Court, 56 and continuing through the Burger Court years, courts began to
hear prisoners' constitutional rights claims. 7 It has been said that this
expansion of inmates' rights by the courts was due largely in part to the
civil rights movement and the Supreme Court's recently developed sympathy towards the underprivileged.
In 1964, the Supreme Court, in Cooper v Pate,59 recognized a prisoner's
right to religious freedom. 60 The Court held allegations of a violation of
the prisoner's religious liberty stated a cause of action. 61 The Cooper decision marked the beginning of a weakening of the hands-off doctrine
concerning prisoners' religious liberty.62
In 1972, the Supreme Court revisited the issue of a prisoner's rights to
religious liberty in Cruz v. Beto. 63 The Supreme Court reversed the judg334 U.S. 266, 285 (1948)).
53. See Louis M. Holscher, Sweat Lodges and Headbands: An Introduction to the
Rights of Native American Prisoners,18 NEW ENG. J.ON CRIM. & CIV. CONFINEMENT
33, 36 (1992) (citing Ruffin v. Commonwealth, 62 Va. (21 Graft.) 790 (1871)).
54. Id.
55. Solove, supra note 2, at 466 (citing Procunier v. Martinez, 416 U.S. 396, 40405 (1974)).
56. See Holscher, supra note 53, at 36.
57. See The Religious Rights of the Incarcerated,125 U. PA. L. REV. 812, 815
(1977).
58. See Norman, supra note 48, at 195 (citing JAMES T. GOBERT & NEIL P.
COHEN, RIGHTS OF PRISONERS 7-8 (1981)).
59. 378 U.S. 546 (1964) (per curiam). In Cooper v. Pate, a state prisoner in Illinois brought a suit under the Civil Rights statutes, 28 U.S.C. § 1343 and 42 U.S.C. §§
1983, 1979, alleging that "solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed
by other prisoners." Id. at 546. The district court dismissed the proceeding and the
court of appeals affirmed. See id. The Supreme Court reversed the judgment, holding
that "[t]aking as true the allegations of the complaint, . .
.,
[it] stated a cause of action
and it was error to dismiss it." Id. at 546.
60. See id.
61. See Matthew P. Blischak, Note, O'Lone v. Estate of Shabazz: The State of
Prisoners'Religious Free Exercise Rights, 37 AM. U. L. REV. 453, 459 (1988) (citing
Cooper v. Pate, 378 U.S. 546, 546 (1964) (per curiam)).
62. See id (citations omitted).
63. See Cruz v. Beto, 405 U.S. 319, 319 (1972) (per curiam). A state prisoner in
Texas brought a suit under the Civil Rights statute, 42 U.S.C. § 1983, alleging that he
was denied the right to hold religious services, and that he was denied the privileges
Summer, 1999)
CITY OFBOERNE V FLORES
ment below and held that the Buddhist prisoner's free exercise right was
violated under the First and Fourteenth Amendments if the allegations
were assumed to be true, and thus, it was error to dismiss the suit. 64 The
Court stated that "[if the inmate] was a Buddhist and if he was denied a
reasonable opportunity of pursuing his faith comparable to the opportunity
afforded fellow prisoners who adhere to conventional religious precepts,
then there was palpable discrimination by the state against the Buddhist
religion ... ,,65 Although the Court did not establish a clear standard of
review for prisoners' free exercise claims, it stated that the courts must
"enforce the constitutional rights of all 'persons,' including prisoners." 66
Two years later, in Procunier v. Martinez,67 the Supreme Court reviewed a claim giving rise to prisoners' rights to freedom of speech.68 The
Court held that the regulation, which restricted inmates' personal correspondence, could be justified only if it furthered an important governmental interest, and the limitation was either no greater than necessary or
essential to protect that interest.69 In Martinez, state prisoners in California brought a class action under the First and Fourteenth Amendments
alleging that prisoner mail censorship regulations and a ban against the
user of law students and legal paraprofessionals to conduct attorney-client
interviews with inmates violated their constitutional rights. 70 The Court
reasoned that the mail censorship implicated more than a prisoner's right
to free speech because the regulations restricted the right of those who
were outside of the prison.7' The Court stated that the challenged mail
censorship was too broad and prejudicial and, absent a showing that the
regulations were necessary to the furtherance of a governmental interest
unrelated to the suppression of expression, the regulations violated the
right to free speech under the First and Fourteenth Amendments.72 Thus,
enjoyed by Protestant, Jewish, and Roman Catholic inmates because of his Buddhist
faith. See id. at 319-21. The district court dismissed the proceeding and the court of
appeals affirmed. See id. at 321.
64. Id. at 322.
65. Id. at 322.
66. Id. at321.
67. 416 U.S. 396 (1974). The Supreme Court affirmed the judgment of the district court in which the challenged regulations were held unconstitutional. See id. at
419. As to the rule restricting attorney-client interviews to members of the bar and
licensed private investigators, the Court held it unconstitutional and reasoned that the
rule "constituted an unjustifiable restriction on the prisoners' right of access to the
courts under the Due Process Clause of the Fourteenth Amendment." Id. at 419.
68. See id.
69. See id. at 413.
70. See id. at 398.
71.
See id. at 408.
72. See id. at 415.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
the standard set forth in Martinez was not considered to be a proper one to
apply in claims involving solely prisoners' rights."
Following Martinez, the Supreme Court reviewed four claims involving
solely prisoners' constitutional rights74 in Pell v. Procunier,75 Jones v.
North CarolinaPrisoners' Union,76 Bell v. Wolfish,77 and Block v. Ruth73. See Turner v. Safley, 482 U.S. 78, 85-86 (1986) (citation omitted).
74. See id. at 86-87.
75. 417 U.S. 817 (1974). In Pell v. Procunier,state prison inmates in California
and three professional journalists brought a suit challenging a prison regulation under
which media representatives were able to interview inmates, but were unable to select
particular inmates, and prisoners themselves could not initiate interviews. See id. at
820. The inmates asserted that this regulation violated their rights of free speech
under the First and Fourteenth Amendments. See id. at 820-21. The journalists,
similarly, contended that the regulation violated the freedom of the press guaranteed
by the First and Fourteenth Amendments. See id. at 821. The Supreme Court held
that the challenged regulation did not infringe the freedom of speech of the inmates.
See id. at 835. It reasoned that alternative channels of communication were open to
inmates, and so long as the regulation operated in a neutral way, the regulation fell
within the appropriate restrictions to which prisoners were necessarily subject. See
id. at 827-28. The Court also held that the regulation did not violate the constitutional
right of free press because the regulation did not deny the press access to sources of
information available to members of the general public. See id. at 835.
76. 433 U.S. 119 (1977). In Jones v. North CarolinaPrisoners' Union, a prison
inmate labor union [hereinafter Union] brought a suit against North Carolina Department of Correction [hereinafter NCDC] alleging that NCDC's "efforts to prevent the
operation of a prisoners' union violated the First and Fourteenth Amendment[s]" and
that the refusal to grant the Union privileges enjoyed by "other organizations operating within the prison system deprived the Union of equal protection of the laws." Id.
at 121. The Supreme Court held that the challenged regulations did not violate the
free speech rights of the First and Fourteenth Amendments because the regulations
were rationally related to reasonable objectives of the prison administration. See id.
at 125-32. The Court also held that the challenged prison practice did not violate the
Equal Protection Clause because the prison did not constitute a public forum and
NCDC demonstrated a rational basis for distinguishing between the Union and the
other organizations. See id. at 133-38.
77. 441 U.S. 520 (1979). In Bell v. Wolfish, pretrial detainees and inmates at a
federally operated short-term custodial facility in New York brought a class action to
"challenge numerous conditions of confinement and practices . .
. ."
Id. at 523. The
Supreme Court held that the confinement of two inmates in rooms originally intended
for single occupancy did not violate the Due Process Clause of the Fifth Amendment.
See id. at 541. The Court reasoned that under the Due Process Clause, a detainee may
not be punished prior to an adjudication of guilt, and the challenged practice did not
amount to punishment. See id. at 540-41. The Court further held that prohibiting the
receipt of hardback books unless mailed directly from publishers, book clubs, or
bookstores did not violate the inmates' First Amendment rights, because that practice
was a rational response by prison officials to an important security problem. See id.
at 550. The Court stated that this rule operated in a neutral manner, without regard to
the content of the expression and there were alternative means of obtaining reading
Summer, 1999]
CITY OFBOERNE V FLORES
erford.7 8 All of these cases inquired "whether a prison regulation that
burdens fundamental rights [wa]s 'reasonably related' to legitimate penological objectives,79 or whether it represent[ed] an 'exaggerated response'
to those concerns."
In the landmark case of Turner v. Safley,80 the Supreme Court established a proper standard for prisoners' constitutional rights claims.8 ' In
Turner, state inmates in Missouri brought a class action suit challenging
the constitutionality of prison regulations.8 2 The first challenged regulation permitted correspondence between inmates at different correctional
institutions who were immediate family members, as well as correspondence between inmates regarding legal matters.83 All other correspondence between inmates was permitted only if each inmate's classification
or treatment team deemed it to be within the parties' best interests. 84 The
second challenged regulation permitted an inmate to marry only upon obtaining the permission of the superintendent of the prison; 85 permission
was given only when the inmate had shown that there was evidence of a
compelling reason for marriage.8 6 The Court stated thai "when a prison
regulation impinges on inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests. 8 7 In
determining the reasonableness of a regulation, the Court established a
four-part analysis: "(1) there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put
forward to justify it;",88 (2) "whether there are alternative means of exermaterials; thus, the rule was "a 'reasonable "time, place and manner" regulatio[n that
is] necessary to further significant governmental interests... ."' Id. at 552 (alteration
in original) (citations omitted).
78.
468 U.S. 576 (1984). In Block v. Rutherford, pretrial detainees at Los Ange-
les County Central Jail in California brought a class action under the Civil Rights
Statutes, 42 U.S.C. §§ 1983, 1985, challenging on due process grounds the jail's pol-
icy of denying them contact visits and its "practice of permitting irregularly scheduled
shakedown searches of individual cells in the absence of the cell occupants." Id. at
578. The Supreme Court held that the challenged policy and practice did not violate
the Due Process Clause of the Fifth and Fourteenth Amendments because these policies and practices were reasonably related to the security of the jail. See id. at 591.
79. Turner v. Safley, 482 U.S. 78, 87 (1987).
80. 482 U.S. 78 (1987).
81.
82.
83.
84.
85.
86.
See id. at89.
See id at 81.
See id.
See id. at 82.
See id.
See Turner, 482 U.S. at 82.
87.
88.
Id. at 89.
Id. (quoting Block v. Rutherford, 486 U.S. 576, 586 (1994)).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
cising the right that remain open to prison inmates;" 8 9 (3) "the impact accommodation of the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources generally;" 90 and,
(4) "the absence of ready alternatives is evidence of the reasonableness of
a prison regulation." 9' It must be noted, however, that the Court did not
make it clear "whether all four factors must support the reasonableness of
the regulations or whether the four factors should be weighed in relation to
the totality of the circumstances." 92 The Court held the correspondence
regulation constitutional because it was logically related to the legitimate
security concerns of the prison. 93 The marriage regulation was held unconstitutional because it violated prisoners' constitutionally protected
right to marry.94 The Court reasoned that the regulation was facially invalid even under the reasonable relation test and absent a compelling reason
to restrict prisoners'95 right to marry, the regulation swept more broadly
than was necessary.
Several days after the Turner decision, the Supreme Court, in O Lone v.
Estate of Shabazz, held that the Turner reasonableness standard should be
used in reviewing prison regulations alleged to infringe on prisoners' religious liberty. 96 In OLone, state prisoners in New Jersey, who were
members of the Islamic faith, brought an action challenging prison policies which prevented them from attending Jumu'ah, a weekly Muslim
congregational service. 97 The prisoners asserted that the policies violated
their free exercise rights under the First and Fourteenth Amendments.98
The Court held that the challenged policies were reasonably related to
legitimate penological interests of institutional order and security, and
thus did not offend the Free Exercise Clause of the First Amendment.99 It
has been commented that the Turner and O Lone decisions are evidence
that "the Court is regressing from the era of civil rights decisions in favor
89. Id. (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 131
(1977); Pell v. Procunier, 417 U.S. 817, 827 (1974)).
90. Id.
91. Id. (citing Block, 468 U.S. at 587.)
92. Blischak, supra note 61, at 453.
93. See Turner, 482 U.S. at 91-93.
94. See id. at 93.
95. See id. at 96-99.
96. See O'Lone v. Shabazz, 482 U.S. 342, 349 (1987).
97. See id.
98. See id. at 345.
99. See id at 350-53. The Court stated "[w]e take this opportunity to reaffirm
our refusal, even where claims are made under the First Amendment, to 'substitute
our judgment on ... difficult and sensitive matters of institutional administration,' for
the determinations of those charged with the formidable task of running a prison." Id.
at 353 (quoting Block v. Rutherford, 468 U.S. 576, 588 (1984)).
Summer, 1999]
CITY OFBOERNE V FLORES
00
of allocating broad discretionary powers to prison officials."'
In 1993, Congress, "[s]purred by a diverse coalition of religious
groups,"'10' enacted the Religious Freedom Restoration Act [hereinafter
RFRA]. 1 2 RFRA sought to reinstate the compelling interest test as set
forth in Sherbert v. Verner'0 3 and Wisconsin v. Yoder'0 4 for reviewing
cases claiming a violation of the free exercise right. 10 5 RFRA was passed
v. Smith.10 6
in response to a controversial decision in Employment Division
RFRA states that in Smith, "the Supreme Court virtually eliminated the
100. Norman, supra note 48, at 195.
101. Solove, supra note 2, at 470. "The coalition, called the Coalition of the Free
Exercise of Religion, was composed of over 50 religious organizations .... " Id.
(citation omitted).
102. 42 U.S.C. §§2000bb-bb-4 (1994) [hereinafter RFRA].
103. 374 U.S. 398 (1963). In Sherbert, an appellant, a member of the Seventh-day
Adventist Church, who was discharged by her South Carolina employer because she
did not work on Saturday, the Sabbath day of her faith, brought a suit challenging the
South Carolina Unemployment Compensation Act. See id.at 399-400. The law provided that to be eligible for benefits, a claimant must be able to work and available for
work and if the claimant has failed, without good cause, to accept available work, the
claimant is ineligible for benefits. See id.at 400-01. The appellant asserted that the
denial of her application for the benefit under the law violated her free exercise rights
under the First and Fourteenth Amendments. See id. at 401. The Court stated that the
law imposed an unconstitutional burden on the free exercise of her religion by disqualifying her from unemployment compensation benefits because she did not accept
employment in which she would have to work on Saturday. See id.at 403-06. The
Court held that the law violated the Free Exercise Clause of the First Amendment
because there was no compelling state interest which would justify the substantial
burden on her right to religious freedom. See id. at 406-09.
104. 406 U.S. 205 (1972). In Yoder, members of the Old Order Amish religion
and the Conservative Amish Mennonite Church in Wisconsin were convicted of violating the State's compulsory school-attendance law. See id. at 207. They brought an
action asserting that the law violated their rights under the Free Exercise Clause of the
First Amendment, made applicable to the States by the Fourteenth Amendment. See
id. at 207-09. The Court held the state's compulsory school-attendance law violated
the Free Exercise Clause of the First Amendment because the state's interest in universal education, as well as its interest as parens patriae in extending the benefit of
secondary education to children, were not compelling reasons, and thus the substantial burden on the right to religious freedom could not bejustified. See id. at 229-34.
105. See id.
106. 494 U.S. 872 (1990). In Smith, members of the Native American Church
were fired from their jobs with a private drug rehabilitation organization because they
ingested peyote, a hallucinogen that was defined as a controlled substance under Oregon law. See id. at 874. The peyote was ingested for sacramental purposes at a ceremony. See id.Their applications for unemployment compensation were denied because they were determined to be ineligible for benefits under the Oregon law disqualifying employees discharged for work-related misconduct. See id. The Supreme
Court held that the Oregon law, which prohibited sacramental use of peyote, did not
at 890.
violate the Free Exercise Clause of the First Amendment. See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
requirement that the government justify burdens on religious free exercise
imposed by laws neutral toward religion."' 1 7 RFRA mandates that "government shall not substantially burden a person's exercise of religion even
if the burden results from a rule of general applicability" unless the burden
is the "least restrictive means of furthering a compelling governmental
interest."108 Because the Senate rejected the Reid amendment, 10 9 which
would have required that prisoners' free exercise claims be exempted from
application of RFRA," 0 it appears that Congress intended the strict11scrutiny standard apply to cases involving prisoners' free exercise claims. I
IV. CITY OF BOERNE v FLORES
A. Facts
The Catholic Archbishop of San Antonio, Bishop Flores, applied for a
building permit from the City of Boerne to enlarge the Saint Peter Catholic Church built in 1923.12 The city's Landmark Commission and the
City Council denied the permit under ordinance 91-05, which was enacted
to "'protect, enhance and perpetuate selected historic landmarks [and to]
safeguard the City's historic and cultural heritage." ' 1 3 The church challenged the denial of the permit under RFRA seeking a judicial declaration
that the ordinance was unconstitutional."14
B. ProceduralHistory
1. The Federal District Court
During the pretrial hearing the Senior District Judge of the United
States District Court for the Western District of Texas, agreed to: 1) certify the question of the constitutionality of RFRA, which was raised by the
city as a special issue, to the Attorney General of the United States; and 2)
have both parties submit briefs addressing the question.' 5 The Solicitor
107. 42 U.S.C. §§ 2000bb-1 (1994).
108. Id.
109. See id. (citation omitted).
110. See id. (citation omitted).
111. See Solove, supra note 2, at 471 (citing S. REP. No. 103-11, at 1 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1900-01; H.R. REP. No. 103-88, at 7-8 (1993)).
112. See Flores v. City of Boerne, 73 F.3d 1352, 1354 (5th Cir. 1996).
113. Id. (citation omitted).
114. See id.
115. See Flores v. City of Boeme, 877 F. Supp. 355, 356 (W.D. Tex. 1995).
Summer, 1999]
CITY OFBOERNE V FLORES
General agreed to intervene on behalf of the United States, and all parties
submitted briefs.16
The court held in its order for interlocutory appeal that RFRA was unconstitutional because Congress specifically sought to overturn Supreme
Court precedent established in Employment Division v. Smith. 17 The passage of RFRA violated "the doctrine of Separation of Powers by intruding
on the power and duty of the judiciary ,1i8 The court ordered an interlocutory appeal to the Fifth Circuit Court of Appeals, requesting expedited
and the church subsequently appealed
consideration. 1 9 The United States
120
appeal.
to
leave
for
and petitioned
2. The Court of Appeals
The United States Court of Appeals for the Fifth Circuit held that RFRA
was constitutional. 121 The court reasoned that Congress did not exceed its
Section 5 enforcement power 2 2 in enacting RFRA because in Katzenbach
v. Morgan,123 the Supreme Court rejected the argument that under Section
5 enforcement power Congress could only prohibit acts that would violate
the substantive provisions of the Fourteenth Amendment. 124 In Morgan,
the Court established a three-part test regarding the inquiry into what is
appropriate legislation under Section 5 .i25 In deciding the question, courts
should consider "whether the statute 'may be regarded as an enactment to
enforce [the Fourteenth Amendment]', whether it is 'plainly adapted to
by but is consistent with 'the
that end' and whether it is not prohibited
' 126
letter and spirit of the constitution. ,,
Applying the Morgan three-part test, the court held that Congress en27
acted RFRA to enforce the rights guaranteed by the First Amendment.
The court further held that Congress considered the need for appropriate
legislation to enforce the provisions of the Fourteenth Amendment by responding with legislation that is plainly adapted to that end. 12 As to the
third inquiry of the Morgan test, the court held that RFRA did not violate
116. See id.
117 494 U.S. 872 (1990); Flores, 877 F Supp. at 357
118.
119.
120.
121.
Flores, 877 F Supp. at 357.
See id. at 358.
See Flores, 73 F.3d at 1354.
See id. at 1356.
122. See U. S. CONST. amend. XIV, §§ 1 & 5.
123. 384 U.S. 641 (1966).
124. See Flores, 73 F.3d at 1356 (citing Katzenbach v. Morgan, 384 U.S. 641, 648
(1966)).
125. See id.
126. Id. (quoting Morgan, 384 U.S. at 651).
127 See Flores, 73 F.3d at 1358.
128. See id.
at 1360.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
any provision of the Constitution 29 including separation of powers, 3 ° the
Establishment Clause,13 ' and the Tenth Amendment. 32 Section 5 of the
Amendment, therefore, empowered Congress to enact
Fourteenth
33
RFRA.
1
C. The Supreme CourtDecision
1. The Majority Opinion
In a six-to-three decision,134 the Court held that Congress exceeded its
power under the Enforcement Clause of the Fourteenth Amendment 35 in
enacting RFRA because RFRA violated vital principles necessary to
maintain separation of powers and the federal1 37balance. 36 Accordingly,
the Court held that RFRA was unconstitutional.
The Court stated that "[1]egislation which alters the Free Exercise
Clause's meaning cannot be said to be enforcing the Clause. Congress38
does not enforce a constitutional right by changing what the right is.,'1
The Court further explained that the Fourteenth Amendment's history
showed the remedial and preventive, rather than substantive nature of the
Enforcement Clause. 39 Thus, the power to interpret the Constitution in a
case or controversy should remain with the judiciary. 40 The Court
pointed out that no case law supports the suggestion that Congress has a
substantive, non-remedial power under the Enforcement Clause, 14 1 even
though there is language in Morgan which could be interpreted as acknowledging a power in Congress to enact legislation that expands the
rights contained in section one of the Fourteenth Amendment. 42 The
129. See id.
130. See id at 1363.
131. See id. at 1364.
132. See id.
133. See Flores,73 F.3d at 1364.
134. See City of Boerne v. Flores, 521 U.S. 507 (1997). Justice Kennedy delivered the opinion of the Court and Chief Justice Rehnquist, Justices Stevens, Thomas,
and Ginsburgjoined, and Justice Scaliajoined in all but Part III-A-1. See id.
135. See U.S. CONST. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.").
136. See City of Boerne, 521 U.S. at 536.
137.
138.
139.
140.
141.
See id.
Id. at 519.
See idat 519-520.
See id at 524.
See id at 525.
142. See City ofBoerne, 521 U.S. at 527-528.
Summer, 1999]
CITY OFBOERNE V. FLORES
Court emphasized that "[i]f Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Con-.
stitution 14be
'superior paramount law, unchangeable by ordinary
3
means.""
Furthermore, the Court held that RFRA was not remedial or preventive
in its nature because RFRA's legislative record "lacks examples of modern instances of generally applicable laws passed because of religious bigotry.''144 In holding, the Court distinguished RFRA from the Voting
Rights Act. 145 The Court stated that in the legislative record of RFRA,
there were insufficient examples that RFRA was enacted "due to animus
or hostility to the burdened religious practices or that [the record] indicate[d] some widespread pattern of religious discrimination in this country."'146 Moreover, the Court pointed out that the "RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior., 147 The reach and scope of RFRA was far too broad to be able to be
considered remedial in nature or preventive thereby falling within Congress' Enforcement power; therefore, RFRA should be distinguished from
other statutes enacted under the Enforcement Clause. 148 The Court also
pointed out that RFRA required every case to be strictly scrutinized whenever the government substantially burdens a person's exercise of religion,
even though the strict scrutiny standard was not used in every case involving
religious liberty in pre-Smith jurisprudence on which RFRA re149
lied.
2. The Concurring Opinions
a. Justice Stevens's ConcurringOpinion
Justice Stevens agreed with the majority, but pointed out that RFRA
violated the Establishment Clause of the First Amendment "[b]ecause the
143. See id.at 529 (quoting Marbury v. Madison, I Cranch 137, 177 (1803)).
144. Id. at 530.
145. See id. at 530. In South Carolinav. Katzenbach, the Court upheld various
provisions of the Voting Rights Act of 1965 which was enacted under Section 5, the
Enforcement Clause, of the Fourteenth Amendment, because the Act was found to be
enacted for the remedial purposes responding to the wide-spread and persisting deprivation of constitutional rights which resulted from a history of racial discrimination.
See South Carolina v. Katzenbach, 383 U.S. 301, 308, 315 (1966).
146. City of Boerne, 521 U.S. at 531.
147. Id. at 532.
148. See idat 536.
149. See id. at 535.
CRIMINAL AND CIVIL CONFINEMENT
landmark is owned
its owner a federal
applicable, neutral
mental preference
Clause.' 5'
[Vol. 25:519
by the Catholic Church, it is claimed that RFRA gives
statutory entitlement to an exemption from a generally
civil law."' 150 RFRA, therefore, represented governfor religion thereby violating the Establishment
b. Justice Scalia'sConcurringOpinion
In response to Justice O'Connor's dissenting opinion, Justice Scalia
contended that the historical record of the Free Exercise Clause and case
law supported the holding in Smith. 152 He asserted that "[r]eligious exercise shall be permitted so long as it does not violate general laws governing conduct."' 53 Contrary to Justice O'Connor's contentions, Justice
Scalia explained that "the most plausible reading of the 'free exercise'
enactments ... is a virtual restatement of Smith. ' 154 Further, Scalia reasoned that the "limitation upon the scope of religious exercise would have
been in accord with the background political philosophy of the
age (asso155
ciated most prominently with [the philosopher] John Locke)."'
Moreover, "that legislatures sometimes ... found it 'appropriate,' to
accommodate religious practices does not establish that accommodation
was understood to be constitutionally mandated by the Free Exercise
Clause."' 56 Certain statements of the Framers of the Constitution regarding debates about proposed legislative enactments or debates over general
principles which were not made "in connection with the drafting of State
or Federal Constitutions" should be interpreted only as the reflection of
the speakers' views of the proper relationship between government and
57
religion, but not their views of the constitutionally required relationship.
Justice Scalia identified, not surprisingly, no precedent which refused to
enforce a generally
applicable statute because it failed to accommodate
58
free exercise.
150. Id. at 537 (Stevens, J., concurring) (citing Wallace v. Jaffree, 472 U.S. 38,
52-55 (1985)).
151. Id. (Stevens, J., concurring).
152.
153.
154.
155.
See City of Boerne, 521 U.S. at 537 (Scalia, J., concurring).
Id. at 539 (Scalia, J., concurring).
Id. (Scalia, J., concurring).
Id. at 540 (Scalia, J., concurring) (citing Ellis West, The Case againsta Right
to Religion-based Exemptions, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 591, 624
(1990)).
156. Id. at 541 (Scalia, J., concurring) (footnote omitted).
157. Id. (Scalia, J., concurring) (citations omitted).
158. See City ofBoerne, 521 U.S. at 541 (Scalia, J., concurring).
Summer, 1999]
3.
CTY OFBOERNE V FLORES
The Dissenting Opinions
a. Justice O'Connor'sDissentingOpinion
Justice O'Connor contended that the Smith holding was at odds with
159
precedent and historical evidence surrounding the Free Exercise Clause.
"[T]he [Free Exercise] Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without
impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law."'160 Prior to Smith, when the
government substantially burdened an individual's free exercise of religion, the courts generally used the strict scrutiny161standard regardless of the
neutrality and general applicability of the laws.
Although Justice O'Connor agreed with the majority opinion's holding
that Congress' Section 5 Enforcement Power under the Fourteenth
Amendment is remedial or preventive, rather than substantive, she pointed
out that the majority's holding that RFRA was unconstitutional was based
on the assumption that Smith was correctly decided.162 She emphasized
that "it is essential for the Court to reconsider its holding in Smith" because the holding in Smith "does not faithfully serve the purpose of the
of the historical record and the precedent of the Free
Constitution" in light
163
Exercise Clause.
b. Justice Souter's DissentingOpinion
Justice Souter contended that the issue of whether RFRA was properly
enacted under Congress' Section 5 Enforcement Power could not be
soundly decided without reexamining the precedential value of the Smith
holding. 164 He had serious doubts about the precedent set by Smith.165 He
was not, however, prepared to reject the Smith decision without having
full adversarial consideration on the issue. 166 He contended that this case
159. See id. at 545 (O'Connor, J., dissenting); see also Employment Div. v. Smith,
494 U.S. 872 (1990).
160. City of Boerne, 521 U.S. at 546 (O'Connor, J., dissenting).
161. See id.
162. See id. (O'Connor, J., dissenting).
163. Id. at 564-65 (O'Connor, J., dissenting). Justice O'Connor asserted that the
Smith decision is contrary to the purposes of the Constitution and "[g]iven the centrality of freedom of speech and religion to the American concept of personal liberty,
it is altogether reasonable to conclude that both should be treated with the highest
degree of respect." Id. (O'Connor, J., dissenting).
164. See id. (Souter, J., dissenting).
165. See id. at 565 (Souter, J., dissenting).
166. See City ofBoerne, 521 U.S. at 565 (Souter, J., dissenting).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
should have been set down for re-argument, which the Court failed to do;
as a result, "[the] free-exercise law remain[ed] marked by an 'intolerable
tension[]' .... ,,167
c. Justice Breyer's DissentingOpinion
Justice Breyer agreed with Justice O'Connor's dissenting opinion that
the case should have been set for re-argument to decide whether the Smith
decision was correct.' 6 8 He did not, however, find it necessary to consider
the question whether Section 5 of the Fourteenth Amendment would
authorize Congress to enact RFRA, assuming Smith was correctly decided
because Congress
exceeded its power under the Enforcement Clause in
169
enacting RFRA.
V.
ANALYSIS
A. RFRA Application andthe Impact of the Flores Decision
Although the courts have applied RFRA's strict scrutiny standard to
prisoners' free exercise claims, they have interpreted differently RFRA's
substantial burden on religion requirement.1 70 The Fourth and Eleventh
Circuits have required a claimant to show that the burdened practice is
"religiously compelled," to fulfill the substantial burden on religion requirement of RFRA1 7 1 The "compulsion" test requires claimants to show
that the government burdened a practice, which is mandated by their faith,
or that the government required them to engage in a conduct which is prohibited by their faith.17 ' The Sixth Circuit, on the other hand, has required
a claimant to show that the practice which has been substantially burdened
is "central" to his or her religious beliefs. 73 The Third, Fifth, and Ninth
Circuits have used a hybrid standard of the "compulsion" test (a practice
should be religiously compelled) and "centrality" test (a practice should be
167. Id.at 566 (Souter, J., dissenting) (quoting Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, 574 (1993) (Souter, J., concurring in part and concurring in judgment)).
168. See id. (Breyer, J., dissenting).
169. See id. (Breyer, J., dissenting).
170. See Steven C. Seeger, Note, Restoring Rights to Rites: The Religious Motivation Test and the Religious Freedom Restoration Act, 95 MICH. L. REv. 1472, 1474
(1997).
171. See id. at 1474 n.14 (citing Goodall v. Stafford County Sch. Bd., 60 F.3d 168,
172-73 (4th Cir. 1995)).
172. See id. at 1474 & n.14.
173. See id. at 1474.
Summer, 1999]
CITY OFBOERNE V FLORES
central to the claimant's religious beliefs).174 The Second and Seventh
Circuits have interpreted RFRA's substantial burden requirement more
broadly by using the "motivation" test. 75 Under the "motivation" test, the
substantial burden requirement is satisfied by a claimant's showing that a
practice, which claimed to be burdened, is motivated by his or her sincere
religious belief.7 6 The Eighth and Tenth Circuits have77 used a hybrid
standard of the "motivation" test and the "centrality" test.
The "compulsion" test and "centrality" test, however, "violate the Constitution by requiring courts to resolve theological disputes.,' 78 It has
been pointed out that "the decisive argument in favor of the generous
definition of 'substantial burden,' . . . is the undesirability of making
judges arbiters of religious law."'179 This is because "[a] fundamental
problem arises... when courts search for a body of authority by which 8to
0
gauge whether a claimant's religious practice is central or compelled."'
By deciding whether a practice is central or compelled, courts inevitably
make a theological interpretation of the believer's faith and engage in
doctrinal decision-making.' 8 ' It must be pointed out that "[t]he practice of
religion .. .is an intensely personal enterprise. Individuals invariably
form religious
views that differ from those held by members of the same
182
faith."
[A]ny imaginable process for resolving disputes over centrality creates the
spectre of religious experts giving conflicting testimony about the significance of a religious practice, with the state's decision-maker authoritatively
choosing among them. A hoary and well-respected line of cases... strongly
is both beyond
suggests that judicial resolution of theological controversy
18 3
judicial competence and out of constitutional bounds.
The "motivation" test is therefore more appropriate than the "compulsion" or "centrality" tests because under the "motivation" test, courts can
decide whether a claimant's practice is substantially burdened without
inquiring into the claimant's religious beliefs.8 4 It is true that "[t]he magnitude of the religious burden is often stated in terms of the centrality of
174. See id. at 1474 n.14.
175. See id. at 1475 n.15.
176. See Seeger, supranote 170, at 1475.
177. See Mack v.O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996).
178. Seeger, supra note 170, at 1510.
179. Mack, 80 F.3d at 1179 (citing Thomas v. Review Board, 450 U.S. 707, 716
(1981); Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988)).
180. Seeger, supra note 170, at 1507.
181. See id. at 1510.
182. Id. at 1507 (citations omitted).
183. Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 959 (1989).
184. See Seeger, supranote 170, at 1512-13.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
the tenet to the believer's faith ... [, h]owever, the Court has never specifically required free exercise claimants to demonstrate that the state requirement burden a central tenet of their beliefs."18 ' The motivation/subjective test is also "ultimately a culturally coherent one in terms of
American religious history ... [viewing the right to religious freedom] as
belonging to the individual and the religious object is viewed only in the
primary context of the individual's relationship to god.' 8 6
In Flores, RFRA was held unconstitutional at least as applied against
state and local government because it exceeded Congress' enforcement
power under Section 5 of the Fourteenth Amendment.18 7 The applicability
of RFRA to the federal government and federal laws seems to remain uncertain and "[o]stensibly, the Flores decision would not, then, prevent
RFRA from being applied to federal laws and policies. Flores did not
reach questions of whether RFRA violates pure separation of powers and
non-establishment principles. 8 The Court held that RFRA violated federalism and separation of powers principles; "[c]onsequently, RFRA remains in effect against the federal government unless and until the courts
decide at least one of these issues unfavorably to the United States. However, neither d[id] Flores seem to prevent Congress from requiring states
and their subsidiaries to accommodate religious liberty infringements...
,,189 Moreover, the Flores court "failed to keep [separation of powers and
185. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§14-12, 1247 (2d
ed. 1988).
186. Winnifred Fallers Sullivan, Judging Religion, 81 MARQ. L. REV. 441, 448-49
(1998).
187. See Rodney A. Smolla, The Free Exercise of Religion after the Fall: The
Casefor Intermediate Scrutiny, 39 WM. & MARY L. REV. 925, 925 (1998); Kent Greenawalt, Why Now is Not the Time for ConstitutionalAmendment: The Limited Reach
of City of Boeme v. Flores, 39 WM. & MARY L. REV. 689, 692-97 (1998); John W.
Whitehead, Religious Freedom in the Nineties: Betwixt and Between Flores and
Smith, 37 WASHBURN L.J., 105, 111 (1997).
Reports indicate that several states have passed or plan to pass their
own RFRA laws so that religious liberty will be protected with respect
to actions of the States. The Associated Press has reported that Rhode
Island and Connecticut have passed such laws. Ohio is close to passing
one as well, though it excludes cases affecting prison inmates. The Virginia, Michigan, New York, California, New Jersey and Florida legislatures are also reported to be considering such laws.
Whitehead, supra at 111 (citations omitted); see also Not Under My Roof You Don't,
A.B.A. J., Apr. 1999, at 28. Five states, Alabama, Connecticut, Florida, Illinois and
Rhode Island, have adopted their own RFRA laws. See id As of February 1999,
RFRA legislation was pending in eleven states, Arizona, California, Hawaii, Louisiana, Maryland, Missouri, New York, Oregon, South Carolina, Texas and Virginia.
See id.
188. Whitehead, supra note 187, at I 11.
189. Ira C. Lupu, Why the Congress Was Wrong and the Court was Right-Reflections on City of Boerne v. Flores, 39 WM. & MARY L. REV. 793, 808 (1998).
Summer, 1999]
CITY OFBOERAE V FLORES
federalism principles] distinct, unwittingly skipping from one to another
and often conflating them"'190 and did not discuss the Necessary and
Proper Clause 9 or its relationship to Congress' Section 5 powers.19 2 In
addition, the Flores Court's broad adoption of the doctrine of judicial supremacy has been criticized and closely analyzed by scholars, and the validity of9 the
Court's rationale for its adoption of the doctrine remains un3
certain.
B. The Impact of Flores On Prisoners'ReligiousLiberty
Since the decision of Flores by the Supreme Court, cases claiming the
94
violation of the First Amendment under RFRA have been dismissed.
The OLone reasonableness test governs at least
as applied against state
195
laws in deciding prisoner's free exercise claims.
A free exercise claim filed under RFRA by death row inmates at a
prison in Tennessee was dismissed in light of the Supreme Court decision
in Flores.9 6 The plaintiffs, adherents of a Native American religion,
claimed that the prison policies substantially burdened their religious
practices; the prison policies prohibited them from "(1) participat[ing] in
sweat lodge ceremonies, (2) wear[ing] traditional Native American clothing, (3) burn[ing] sacred herbs, (4) possess[ing] personal prayer blankets,
and (5) hold[ing] private religious services under the auspices of a religious leader more frequently than once a week."' 197 The district court held
that, although "certain of the prison policies substantially burdened the
plaintiffs' exercise of religion", they were justified by "a compelling governmental interest in either prison security, uniformity of prison procedures, or conservation of scarce prison resources", and entered final
judgement in favor of the defendants.198 The court of appeals affirmed the
190. Stephen Gardbaum, The FederalismImplications of Flores,39 WM. & MARY
L. REV. 665, 666 (1998).
191. U.S. CONST. art. I, §8, cl. 18.
192. See id. at 680.
193. See, e.g., Larry Alexander & Frederick Schauer, On ExtrajudicialConstitutional Interpretation,110 HARV. L. REv. 1359 (1997); Robert F. Nagel, JudicialSupremacy and the Settlement Function, 39 WM. & MARY L. REV. 849 (1998); Mark
Tushnet, Two Versions ofJudicialSupremacy, 39 WM. & MARY L. REv. 945 (1998).
194. See Gilmore-Bey v. Moore, 1997 WL 375295 (2d Cir. 1997); Cooper-Bey v.
Rogerson, 1997 WL 401189 (8th Cir. 1997); Montano v. Hedgepeth 1997 WL 408209
(8th Cir. 1997); Rowold v. McBridge, 973 F. Supp. 829, 835-36 (N.D. Ind. 1997);
Lupu, supra note 183, at 817 n. 49.
195. Alexander & Schauer, supra note 193, at 1363. See also Employment Div. v.
Smith, 494 U.S. 872 (1990); O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
196. See Besh v. Campbell, 1997 WL 420-501, at *1 (6th Cir. 1997).
197. Id.
198. Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
judgment of dismissal. 199
A Nevada state prisoner, a minister of the Universal Life Church, challenged a prison regulation which prohibited "inmates from leading religious groups." 200 The court of appeals held that the regulation did not violate the plaintiffs free exercise of religion under the TurnerlOLone reasonableness test;20 1 the court did not consider the case under RFRA in
light of the City of Boerne holding, which found RFRA
unconstitutional.20 2
As the dissenting justices in Flores contended, unless the precedential
value of the Smith decision is reexamined, prisoners' religious freedom
cannot be sufficiently protected.20 3 Also, given the special status of the
Free Exercise Clause, the precedential value of O Lone should be reevaluated to ensure the premise that prisoners do possess free exercise rights.
"Prior to Flores, RFRA's most wide spread effects were in state prisons.
The religious liberties of prisoners are regulated heavily, and prison inmates are notoriously litigious. Not surprisingly, therefore, more than half
of the reported cases under RFRA involve prison inmates." 204 The Flores
decision, therefore, has practically more impact on inmates' free exercise
claims than any other kinds of claims, although "even outside of prisons,
religion-neutral rules of general applicability sometimes are applied to the
20 5
detriment of churches or religiously motivated activities of individuals."
It is noted that even RFRA, with its strict scrutiny standard, actually
could not achieve sufficient protection of religious liberties "particularly
in the administration of prisons. '2°6 Professor Lupu points out that:
As of June 25, 1997, the date of the Flores decision, the state and federal
courts combined had granted or denied relief on the merits of RFRA complaints in 168 cases. The federal courts had decided 144 cases; the state
courts had addressed [24]. In cases in federal court challenging state prison
policies, RFRA claimants were granted relief [9] times and denied relief [85]
times.... In state courts, RFRA claimants were granted relief in no cases
and denied relief in [5] cases involving prisoner liberties ....
In particular,
RFRA was instrumental in protecting prisoners' rights to wear religious
symbols and to wear their hair in a particular way for religious reasons.
199.
200.
201.
202.
203.
204.
See id.
Anderson v. Angelone, 1997 WL 458676, at *1 (9th Cir. (1997).
See id. at *2-3.
See id. at *3 n.2.
See supra Part IV.C.3.
Lupu, supra note 189, at 799.
205. Id. But see Yehuda M. Braunstein, Note, Will Jewish PrisonersBe Boerne
Again? Legislative Response to City of Boerne v. Flores, 66 FORDHAM L. REV. 2333,
2348 (1998). "Jewish prisoners were generally successful in procuring a strict kosher
diet [under RFRA]." Id.
206. Lupu, supra note 189, at 802.
CITY OFBOERNVE V FLORES
Summer, 1999]
Nevertheless, prisoner lost far more RFRA cases than they won, and state
that the costs of defending against
authorities are on record as 20claiming
7
RFRA claims are prohibitive.
The Flores Court held that Congress' Section 5 enforcement power is
remedial, not substantive and that "[tihere must be a congruence and proportionality between the injury to be prevented or remedied and the means
adopted to that end., 208 "[The Flores Court] emphasized that RFRA was
not 'proportional' to the violation of rights. This, however, is a factual
question .
. .
. RFRA could be reenacted and should be upheld by the
Court as long as there is sufficient congressional fact-finding that neutral
laws of general applicability are a serious threat to the free exercise of
religion. 20 9 In addition, the Flores court failed to consider the significance of Congress' power to expand the scope of constitutional rights so
long as it does not dilute the rights under the Ninth Amendment which
states that "[t]he enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people." 210 It
seems that given the history of deprivation of prisoners' religious liberty,
at least in the prison context, RFRA was properly enacted to remedy violations of free exercise rights of prisoners in proportion to the seriousness
of the violations.
It must be noted that about three years after RFRA, the Prison Litigation
Reform Act of 1995 [hereinafter PLRA] 211 was enacted as "a political answer to the increasing number of prisoner litigation." 212 "[T]he PLRA
prohibited a prisoner from even bringing a RFRA claim if the prisoner had
previously had three suits dismissed as frivolous (assuming very few
RFRA claims would have involved an 'imminent threat of serious bodily
injury.)"' 213 The PLRA, due to its enactment three years after RFRA, was
subject to RFRA and "[t]he three strikes provision in the PLRA therefore
violated RFRA ..
,24
Congress was inconsistent in enacting the
PLRA's three strikes provision when it tried to protect free exercise rights
207. Id. at 802-05.
208. City of Boeme v. Flores, 521 U.S. 507, 520 (1997).
209. Erwin Chemerinsky, The Religious Freedom Restoration Act is a ConstitutionalExpansion of Rights, 39 WM. & MARY L. REv. 601, 634-35 (1998). See also
Douglas Laycock, Conceptual Gulfs in City of Boeme v. Flores, 39 WM. & MARY L.
REv. 743, 745-46 (1998).
210. U.S. CONST. amend. IX; see Chemerinsky, supranote 209, at 603.
211. Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321, 1321-66 (1996).
212. Julie M. Riewe, The Least Among Us: UnconstitutionalChanges in Prisoner
Litigation under the Prison Litigation Reform Act of 1995, 47 DUKE L.J. 117, 118
(1997).
213. Id. at 151.
214. Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
under RFRA by mandating the application of the strict scrutiny standard
for claims involving religious liberty. 215 "Because Congress appears to be
promulgating inconsistent legislation regarding prisoners' ability
to bring
' 2 16
religious claims, the PLRA should be viewed in a suspect light.
C. Difficulties and Obstacles in Protecting Prisoners' Religious
Liberty--Safety and Cost Considerations.
Among other correctional goals, such as order and rehabilitation of
prisoners, security has been regarded as the most central consideration in
administrating prisons.217
Any accommodation of religion involves the potential for resentment, and
any change in existing prison policy presents the possibility of danger. Al-
most all decisions invoke the fear of the slippery slope. These risks and uncertainties can easily lead to a complete refusal to make accommodations,
and consequently,
to the demise of judicial protection for prisoners' relig2 18
ious liberty.
In expressly rejecting the standard established in Abdul Wali, the Court in
O'Lone explained that the Turner/O'Lonereasonableness standard ensures
219
that courts provide prison administrators more appropriate deference.
D. How to Balance the Importance of Prisoners' Religious Liberty and
Other Considerationsin Prison
In Sherbert v. Verner,220 Justice Stewart contended that "the guarantee
of religious liberty embodied in the Free Exercise Clause affirmatively
requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. ' 221 He further expressed the view
that the Constitution requires the government to protect religious freedom
positively, 222 by stressing the importance of religious freedom, stating that
no liberty is more essential to223the continued vitality of the free society..
than is the religious liberty."
215. See id.
216. Id. at 152.
217. See Abdul Wali v. Coughlin, 754 F.2d 1015, 1032 (2d Cir. 1985) (citing Bell
v. Wolfish, 441 U.S. 520, 546-47 (1979)); Jones v. North Carolina Prisoners' Labor
Union Inc., 433 U.S. 119, 129 (1977); Pell v. Procunier, 417 U.S. 817, 823 (1974);
Procunier v. Martinez, 416 U.S. 396, 412-23 (1974)).
218. Solove, supra note 2, at 464.
219. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 404 (1987).
220. 374 U.S. 398 (1963).
221. Id. at 415-16 (Stewart, J., concurring).
222. See id. at 416 (Stewart, J., concurring).
223. Id. at 413 (Stewart, J., concurring). Justice Brennan also stated "religious
freedom-the freedom to believe and to practice [religion]-has classically been one of
Summer, 1999]
CITY OFBOERATE V FLORES
We must keep in mind that "'[a]n inmate's conscience is no less inviolable than that of an unconfined citizen, and a violation could well work
an even greater harm upon the inmate, whose means of spiritual recovery
are limited by the prison environment.' ' 22 4 This is because, as Justice
Douglas stated, "[t]he result [of governmental infringements on religious
freedom] turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individ.ual's scruples or conscience-an important 22area
of privacy which the First
5
Amendment fences off from government."
It has been a difficult challenge to determine how best to protect those
prisoners' rights because incarceration by its nature requires "the curtailment and elimination of certain rights" of prisoners.226 In determining
how best prisoners' religious rights can be protected, it must be stressed
that "[t]he Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as 227
a
blueprint for ensuring sufficient reliance on administrative expertise.'
In other words, the Free Exercise Clause requires courts to "provide a
8
bulwark" against governmental infringements on religious freedom. 2
Considering the role of courts in enforcing the fundamental constitutional
restraints on governmental power, the TurnerlOLone reasonableness
standard applied to all constitutional challenges by prisoners is "categorically deferential".22 9 Justice Brennan pointed out in OLone that if it is
sufficient for prison officials to show only the reasonableness of prison
regulations which burden prisoners' constitutional rights, "the Constitution would hardly be necessary" and prisoners' constitutional rights could
not be protected.2 0 Moreover, "we should be especially wary of expanthe highest values of our society." Braunfeld v. Brown, 366 U.S. 599, 612 (1961)
(Brennan, J., concurring in part and dissenting in part).
224. OLone, 482 U.S. at 368 n.8 (Brennan, J., dissenting) (quoting Comment,
Religious Rights of the Incarcerated,125 U. PA. L. REv. 812, 853-54 (1977)).
225. Sherbert,374 U.S. at 412 (Douglas, J., concurring).
226. O'Lone, 482 U.S. at 356 (Brennan, J., dissenting).
227. Id. at 356 (Brennan, J., dissenting).
228. See id. (Brennan, J., dissenting).
229. See id. at 356 (Brennan, J., dissenting). "[T]he Court's amorphous 'reasonableness' standard makes it too easy for prison officials to restrict basic constitutional
rights since they may be disregarded 'whenever the imagination of the warden produces a plausible security concern."' Gutterman, supra note 43, at 859-60 (quoting
Turner v. Safley, 482 U.S. 78, 100-01 (1986) (Stevens, J., concurring in part and
dissenting in part)).
230. See OLone, 482 U.S. at 356 (Brennan, J. dissenting).
It is true that the degree of deprivation is one of the factors in the
Court's reasonableness determination. . . . Once we provide such an
elastic and deferential principle of justification, "[t]the principle . . .
lies about like a loaded weapon ready for the hand of any authority that
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
sive delegations of power to those who wield it on the margins of society.
Prisoners are too often shielded
from public view; there is no need to
231
make them virtually invisible."
As Justice Brennan stated in O Lone, it seems that the standard set forth
in Abdul Wali v. Coughlin232 is a better suited test for prisoners' free exercise claims.2 33 In Abdul Wali, Judge Kaufman established a test which
considers the dangerousness and degree of deprivation of inmates' religious practices, balancing these concerns with governmental interests such
as security. 4 The Abdul Wali approach maintains that the degree of
scrutiny of prison regulations should depend on "'the nature of the right
being asserted by prisoners, the type of activity in which they seek to engage, and whether the challenged restriction works a total deprivation (as
opposed to a mere limitation) on the exercise of that right." '23 '
Under the Abdul Wali test, if the right asserted is held to be inherently
inconsistent with important penological objectives, judicial deference
should be almost absolute.236 If the activity sought to be engaged in by
prisoners is presumably dangerous, deference to the prison official's
judgment should be extremely broad.237 On the other hand, if the activity
sought to be engaged in by prisoners is not presumably dangerous, and if
the challenged prison regulation works to deprive rather than merely limit
the exercise of a protected right of prisoners, prison officials must show
can bring forth a plausible claim of an urgent need. Every repetition
imbeds that principle more deeply in our law and thinking and expands
it to new purposes."
Id. at 357 (quoting Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J.,
dissenting)).
231. Id. at 358.
232. 754 F.2d 1015 (2d Cir. 1985). In Abdul Wali, state inmates in New York
brought an action under the Civil Rights statute, 42 U.S.C. § 1983 (1982), challenging
a decision made by the Department of Correctional Services which prohibited them
from receiving, on request, copies of a report titled Attica 1982: An Analysis of Current Conditions in New York State Prisons,which contained criticisms and complaints
about conditions at Attica Correctional Facility, a maximum security prison in New
York. See id. at 1019, 1022. The court of appeals held that the challenged decision
violated the inmates' constitutional rights under the First and Fourteenth Amendments
because the prison administrators failed to demonstrate that the refusal to allow delivery of the document was necessary to further an important penological interest. See
id. at 1036.
233. See O'Lone, 482 U.S. at 358 (Brennan, J., dissenting).
234. See Abdul Wali, 754 F.2d. at 1032-33.
235. O'Lone, 482 U.S. at 358 (Brennan, J., dissenting) (quoting Abdul Wali, 754
F.2d at 1033).
236. See Abdul Wali, 754 F.2d at 1033.
237. See id. "[W]here a regulation or practice does no more than define the 'time,
place or manner' in which prisoners may enjoy a protected right, [judges] must avoid
the temptation" to replace the judgements of prison officials with their own. Id.
Summer, 1999]
CITY OFBOERE V FLORES
that the regulation is necessary to further an important government interest.238 Further, the government has the burden of showing that the purpose
for depriving the protected right of prisoners is not greater than necessary
to effectuate the governmental objectives involved. 239 It is important to
note that when a prison regulation completely deprives an inmate of a
right that is regarded as basic, there is a requirement that the government
demonstrate the reasonableness
of the regulation so as to justify the bur240
den on that basic right.
The Abdul Wali test follows the principle that "'[p]rison walls do not
form a barrier separating prison inmates from the protections of the Constitution"' by demanding that prison officials show more than a demonstration of reasonableness of the challenged regulation to justify the complete deprivation of protected rights of prisoners. 241 It has been pointed
out that the greatest single flaw of the Turner/O'Lone reasonableness test
is the inconsistency of rulings by courts, because under the Turner/OLone
test, the bias of a particular court can strongly affect the result of the
test.242 To avoid this inconsistency, it is important to adopt a standard
which makes it possible to distinguish situations which call for different
levels of scrutiny, and the Abdul Wali test is better suited in this regard.2 43
The Abdul Wali test's application of different levels of scrutiny gives appropriate deference to prison officials while at the same time prisoners'
constitutional rights can be protected. 4
Critics who argue that the Abdul Wali test is unworkable because the
test requires courts to determine, first, whether a restricted activity of a
prisoner is dangerous, and then whether the restriction can be allowed
under the Constitution, are substantially misguided in two ways. 245 First,
the Turner four-part test requires courts to make more complex determinations; if courts are deemed able to make determinations under the
Turner test, courts can certainly determine whether the restricted activity
238.
239.
240.
241.
See id.
See id.
See O'Lone, 482 U.S. at 358-59 (Brennan, J., dissenting).
Id. at 367 (Brennan, J., dissenting) (quoting Turner v. Safley, 482 U.S. 78, 84
(1986)).
242. See William Mark Roth, Note and.Comment, Turner v. Safley: The Supreme
Court FurtherConfuses Prisoners' ConstitutionalRights, 22 LOY. L.A. L. REV. 667,
703-04 (1989).
243. See id.
244. See id. at 704; cf Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITrLE
ROCK L.J. 575, 597-98 (1998). "At the very least, prison cases should be made subject to an explicitly different standard than non-prison cases .... [L]imiting RFRA
rights in prison to matters of bodily autonomy might be the soundest solution." Id.
245. See Roth, supranote 242, at 704.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
is dangerous under the more simple Abdul Wali test. 246 Second, under the
Abdul Wali test, prison officials can deal with problems effectively, while
recognizing that their rationale for the regulations may be scrutinized by
courts, and at the same time, prisoners' constitutional rights can be protected.24 7 The Abdul Wali test
allows courts to protect the rights of both
2 48
prison officials and prisoners.
Under the Abdul Wali test, if a restricted activity is not presumptively
dangerous and there is a complete deprivation of a constitutional right of
prisoners, the strict scrutiny standard will apply.249 It has been suggested
that the Abdul Wali test is also subject to manipulation because of this
complete deprivation of a right requirement, and thus, prisoners' rights
cannot be sufficiently protected.2 50 To strike a proper balance between the
rights of prison officials and the rights of prisoners, the proper question
should be whether there has been a substantial deprivation of a constitutional right of prisoners, rather than asking whether there has been a complete deprivation.251 Under this modified Abdul Wali test, the strict scrutiny standard will apply where an activity is not presumptively dangerous,
and the regulation substantially deprives a prisoner of his or her constitutional right.25 2 On the other hand, if an activity is presumptively dangerous, or if the regulation merely restricts the manner in which a right is
expressed, the regulation can be upheld as valid if it is reasonably related
to legitimate penological prison objectives. 3
How should courts determine whether the burden on a person's religion
is substantial? In claims brought under RFRA, the courts applied three
different standards in determining whether there was a substantial burden
on a person's religion.254 One approach, the centrality test, requires a
claimant to establish that the burdened practice is central to his or her religion.255 The compulsion test requires a claimant to show that the burdened practice is mandated by his or her religion. 6 A third approach, the
motivation test, requires a claimant to demonstrate that the burdened
practice is motivated by his or her sincere religious belief 25 7 Courts that
246.
247.
248.
249.
250.
251.
252.
253.
254.
See
See
See
See
See
See
See
See
See
id.
id.
id.
id. at 711-12.
id.
Roth, supra note 242, at 711-12.
id.
id.
Seeger, supra note 170, at 1474-75.
255. See id.
256. See id.
257. See id.
Summer, 1999]
CTYOFBOERNE V FLORES
are required to solve a theological question under the centrality and compulsion tests are beyond the authority of judges, and thereby violate the
Establishment and Free Exercise Clauses of the First Amendment.258 On
the other hand, the motivation test allows courts to determine simply
whether there is a substantial burden on a person's religion without violating the First Amendment.25 9 Thus, under the modified Abdul Wali test,
courts should use the motivation test in determining whether the burden
on a person's religion is substantial or not. "[The Smith decision] was, in
part, a result of the court's increasing reluctance to decide questions involving religious interpretation." 260 Prisoners are required to demonstrate
sincerity of their beliefs in claiming violations of the Free Exercise
Clause.26 ' Under the motivation test, a claimant must demonstrate that his
or her belief is sincerely held and religious in nature, and in addition, he or
she must show that the burdened practice is religiously motivated762 Sincerity of religious beliefs is a requirement for all free exercise claims, and
this requirement is especially important for prisoners' free exercise
claims, 263 as prisoners may create a religion or exploit established religions for their own benefits and purposes. 264 To properly protect religious
liberty, it is necessary that courts determine the degree of seriousness of
the burden placed on an individual's religious rights, while keeping the
court's inquiry into religion at a minimum.265
V.
CONCLUSION
It is suggested that some form of "[h]eightened scrutiny would preserve
the values underlying freedom of religion and should have been used regardless of the diminished rights of the prisoners. Furthermore, permitting
prisoners to practice their religion arguably would provide significant
benefits to the prison system and society.', 266 Considering the importance
of religions in society, and the even more important role of religions for
258. See id. at 1512.
259. See id. "'[T]he constitutional evil to be avoided in all cases is judicial resolution of questions of religious doctrine and practice ...."' Id. (quoting Lupu, supra
note 183, at 959).
260. Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to
Questions of Religious Practiceand Belief, 25 FORDHAM URB. L.J. 85, 88 (1997).
261. See Lawrence M. Reich & Ethan E. Litwin, Substantive Rights Retained by
Prisoners,85 GEO. L.J. 1561, 1569 (1997).
262. See Seeger, supranote 170, at 1512.
263. See Abbott Cooper, Dam RFRA at the Prison Gate: The Religious Freedom
RestorationAct's Impact on CorrectionalLitigation, 56 MONTANA L. REV. 325, 344
(1995).
264. See id.
265. See id. at 133-34.
266. Blischak, supra note 61, at 483-84 (citations and footnotes omitted).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 25:519
prisoners as a "last source of hope for dignity and redemption," 67 prisoners' religious freedom must be protected "whenever realistically possible,
[while] respect[ing] ... the human dignity of the prisoner., 268 There must
be, fundamentally, no difference in protecting religious rights between
prisoners and non-prisoners because prisoners are also members of our
society.2 69 Umehara, a Japanese philosopher, wrote in an essay on The
Constitution in Seventeen Articles,270 by Prince Shotoku Taishi, that he
believed the law must give more protection to the powerless. 27' The law
must protect people's rights equally, and that goal may be achieved only
by protecting the rights of the powerless more than the rights of those who
are not powerless. 27 2 Prince Shotoku Taishi of Japan wrote in 604 A.D.
that "[t]he suites of the wealthy are like a stone thrown into water, while
complaints of the poor resemble water dropped upon a stone. 2 73 Although neither Umehara nor Prince Shotoku Taishi were specifically addressing prisoners' religious freedom, their words strongly remind this
author of prisoners' claims which have historically been given less protection than others.
Winston Churchill stated in 1912 that "[t]he mood and temper of the
public in regard to the treatment of crime and criminals is one of the most
unfailing tests of the civilization of any country. 2 74 Dostoevsky wrote
267. O'Lone v. Estate of Shabazz, 482 U.S. 342, 368 (1987) (Brennan, J., dis-
senting). "As the language of the [Free Exercise] Clause itself makes clear, an individual's free exercise of religion is a preferred constitutional activity." Employment
Div. v. Smith, 494 U.S. 872, 901-02 (1990) (O'Connor, J., concurring). "'[T]he text
of the First Amendment itself 'singles out' religion for special protections."' Id.
(O'Connor, J., concurring) (quoting PAUL G. KAUPER, RELIGION AND THE
CONSTITUTION 17 (1964)).
268. Gutterman, supra note 43, at 860.
269. See OLone, 482 U.S. at 354-55 (Brennan, J., dissenting).
270. See THE TEXT OF THE CONSTITUTION IN SEVENTEEN ARTICLES (ENACTED BY
PRINCE SHOTOKU IN 604 A.D.) (W.G. Aston Trans., 1952). Prince Shotoku Taishi
(574?-622 A.D.) endeavored to build an ideal state based on Buddhism.
271. See TAKESHI UMEHARA, HYAKUNIN ICHIGO 75-77 (Shincho Bunko 1996).
272. See id.
273. See
270, at 2.
THE TEXT OF THE CONSTITUTION IN SEVENTEEN ARTICLES, supra note
274. Gutterman, supra note 43, at 857 (citing Rhem v. Malcolm, 371 F. Supp. 594,
596-97 (S.D.N.Y. 1974)). See also Craig Haney, Psychology and the Limits to Prison
Pain Confronting the Coming Crisis in Eighth Amendment Law, 3 PSYCHOL. PUB.
POL'Y & L. 499, 588 n.4 (1997). Professor Haney contends that "the discipline of
psychology must play a central roll in future attempts to create meaningful limits to
prison pain [in the context of the Eighth Amendment]." Id. at 515. "[T]he time has
come to drastically rethink what prisons can and should accomplish and to develop
ways that will enable these institutions to, in Hans Toch's words, 'increase their humaneness and their sense of concern for inmates."' Id. at 573 (quoting Hans Toch, A
Summer, 1999]
CITY OFBOERATE V FLORES
compellingly that "[a] society which looks upon such things [as the harsh
punishment of its citizens] with an indifferent eye is already infected to
the marrow. ' 275 By allowing the government to restrain prisoners' religious freedom, the value society gives to the freedom of belief and conscience is reduced because the treatment of prisoners reflects the character
of all society.276
Application of the modified Abdul Wali test,277 which uses different
scrutiny standards depending on the degree of deprivation and the
78
dangerousness of a burdened activity, combined with the motivation tese
in determining whether there is a substantial burden on a prisoner's sincerely held religious beliefs, protects prisoners' free exercise rights, while
at the same time, it gives prison officials appropriate deference in administering prisons. As the dissenting justices in Flores asserted, 279 although
Congress might have exceeded Section 5, the Enforcement Clause, of the.
Fourteenth Amendment in enacting RFRA, the precedential value of the
Smith280 decision should have been reevaluated. It can be said that in the
prison context, RFRA was enacted in response to the TurnerlO'Lone reasonableness test for a remedial purpose because under the TurnerlO'Lone
test, which gave prison officials almost complete deference, prisoners'
religious freedom could not be protected in an appropriate manner. During the first half of this century, prisoners were regarded as slaves of the
28
stater.
At the end of this century, it is strongly desired that our society
protect prisoners' religious rights sufficiently because "human beings need
spiritual as well as material sustenance. Without spiritual sustenance, it is
difficult to get and maintain peace of mind. 28 2
Mayu Miyashita
Revisionist View of PrisonReform, 45 FED. PROBATION 3, 9 (1981)).
275.
FYODOR DOSTOEVSKY, THE HOUSE OF THE DEAD 194 (Dent 1962).
276. See id. at 499.
277. See supra notes 233-35 and accompanying text.
278. See supra note 257 and accompanying text.
279. See supra Part IV.C.3.
280. Employment Div. v. Smith, 494 U.S. 872 (1990).
281. See supranote 53 and accompanying text.
282. His Holiness The Dalai Lama, supra note 1, at 5.