Editor's Note: The following commentary was submitted to The Corrections Connection regarding an article published in October 2005.

A response to a recent article on Inmate Religious Rights

There are some things that need to be said in response to the recent Corrections Connection article about inmate religious rights and I'm not going to be bashful about putting them out there:
Knowing only too well how resistant corrections systems are to changing their ways, I'm hardly surprised that some of those who were stonewalling the Religious Land Use and Institutionalized Persons Act [RLUIPA] pending disposition of the Cutter case are still grasping for ways to circumvent that law and that the Ohio DRC and its allies are not seriously heeding the messages sent to them by the U.S. Supreme Court.

Sour grapes are flying and along with the predictable attempts at patching up deflated security claims, more creative stabs at justifying religious discrimination and hackneyed rhetoric over the “reasonableness standard,” we are now being treated to slanted speculation that RLUIPA will be heading back to the Supreme Court.

Curiously, however, there seems to be no problem with RLUIPA's detractors accommodating “majority” faith needs, and particularly the proselytizing Christian programs that are flooding into our prisons and jails. For example, while the Ohio DRC was fighting accommodation of minority faith practices in the consolidated Cutter litigation, they were certainly able to officially promote, host and shut down their prisons on a workday for an Evangelical Christian Promise Keepers event that was broadcast to some 70 other prisons. While Colorado chaplaincy administrators and functionaries were continually obstructing minority faith practices and being slammed by the courts for “…an unwillingness by CDOC to assure that all inmates are afforded their full Free Exercise rights”, they invited the Operation Starting Line program to “bring the message of the gospel” into their facilities with glorification on the CDOC website and in CDOC publications. They also repeatedly used an official department newsletter to request donations to support their solely Evangelical staff chaplains and sent out on DOC stationary letters addressed to “Dear Fellow Christian Warriors”, including a solicitation for funds to build a new prison chapel asking that recipients “please pray with us that…Many be led and loved to Christ…”. And the list goes on and on…

In The Corrections Connection article, the Ohio DRC's Religious Services Administrator Gary Sims asserts that in his system, “The majority groups can have the freedom to practice, but we also provide every inmate the ability to have a spiritual advisor”. This is, of course, the typical spin of those prison systems and jails that almost exclusively provide Christian “majority” denomination chaplains while leaving minority faith and other Christian denomination inmates with the “ability” [i.e. the more often used term “opportunity”] to try and find outside clergy who are presumably willing to volunteer their services and travel to often remotely located facilities. It is not, however, consistent with the American proposition of religious equality for all of its citizenry.
Sims goes on to propose that “a general religious service may be scheduled that all inmates are welcome to attend…” Aside from the facts that there is no such thing as a homogeneous one-size-fits-all worship service and that most denominations are required to follow their own liturgies (with some even prohibited from worshipping with other faiths), it is not too difficult to figure out what the default format of such a service would be and how it would play out when orchestrated by “majority” faith chaplains. 

Prison administrators are also touting the so-called “Faith-Based” units that are springing up around the country as evidence of their commitment to religious programming. While the concept of truly multi-faith prison units (with all inmates having equal opportunity to participate from their own faith perspectives) is laudable, the reality is that almost all of the programs established so far are either exclusively Protestant Christian [e.g. InnerChange] or dominated by them. Even though some of these programs actively denigrate and crusade against other faiths, President George W. is pushing them and his younger brother Governor Jeb did open Florida's entirely Faith-Based – and allegedly multi-faith – Lawtey prison by declaring, “I can't think of a better place to reflect on the awesome love of our Lord Jesus…” So perhaps I'm being unpatriotic by siding with inmates who have dubbed these programs “Fake-Based”.

If you are seeing the pattern here as merely being painted from the pallet of a minority faith chaplain, then I suggest that you view the Cutter amicus brief portraits of those corrections systems already properly accommodating the religious needs of all faiths as they exhibit vibrant religious programs that have not been discolored by RLUIPA or spattered by excessive inmate grievances and lawsuits. [And if you mistake this commentary as Evangelical bashing, I can assure you that I have the utmost respect for organizations such as the Salvation Army and other Conservative Christians who serve as examples of their faith through compassionate action.] 
A careful examination of the decision in Cutter will also reveal a roadmap that can guide us through the non-RLUIPA detour of “sincerely held belief” and put us on the highway toward easily traveling with RLUIPA. So, as we say in Yiddish, let's get down to tachles – practical goals or purposes:

The one religion-related problem facing all of us in corrections is that of inmates falsely claiming to hold by certain religious standards in order to gain unwarranted accommodations, with some even claiming to be bona fide members of certain faiths in attempts to scam naïve outside religious communities, agencies and individuals. Although we may agree that secular courts have no business making religious decisions, the fact remains that they did step over that line by establishing pre-RLUIPA case law that encourages inmate religion-related abuses, and we are being forced to deal with. Fortunately, however, the Supreme Court just handed us a beautiful gift in its Cutter ruling by way of a much overlooked footnote deeming that “prison officials may appropriately question whether a prisoner's religiosity, asserted as the basis for a requested accommodation, is authentic.” This line can be a powerful tool for stopping religious accommodation abuses, but I'm certainly not recommending that every inmate requesting a religious accommodation be put through a sincerity grilling. Rather, I would caution that we must keep it in context and not disregard the qualifying verbiage that surrounds it. Furthermore, it is apparent that a test of knowledge does not equate to a test of sincerity. Therefore, I would urge that legal resources be consulted and that professional correctional chaplains be employed in all religion-related decision making processes.

Moreover, I believe that RLUIPA can be an effective tool in achieving greater sensitivity toward religious diversity within our institutions and, in turn, the larger community.

RLUIPA was fairly easy to comply with prior to and is even more user-friendly post-Cutter. Granted that if incorrectly applied or ignored, it will bite you. For example, if you jump directly to the “least restrictive means” second tier of RLUIP without first documenting a “compelling governmental interest”, you're asking for trouble. And if you are amongst those who continue to stubbornly obstruct religious exercise, you deserve whatever trouble RLUIPA brings you.

RLUIPA was conceived and sponsored by legislators with very differing religious perspectives but a mutual interest in our nation's commitment to religious freedom. It was unanimously passed by both houses of Congress. It has been beneficial to those corrections professionals who have embraced it. And until the inherent right to practice our given faiths is honored in all prisons and jails, RLUIPA will continue to be necessary.

Now that debate over RLUIPA has been settled by our Supreme Court, the time has come for everyone to get on board.

Chaplain Gary Friedman is the Chairman of Jewish Prisoner Services International, Communications Chairman of the American Correctional Chaplains Association and Vice-Chairman of the Washington State DOC's Religious Services Advisory Committee. He sits on the ACA's Faith-Based Services Committee and Resolutions & Policies Development Advisory Committee. He was also selected as the 2005 ‘Chaplain of the Year'.