An Orthodox Jewish man incarcerated in Florida has filed a suit demanding that the state penitentiary provide him wish kosher meals, over and above the prison’s claim that to do so would be too expensive and threat to prison security. This case raises a nettled mire of First Amendment issues, but the long and short of it for the lay skeptic is that the man in question, Bruce Rich, is going to end up getting his kosher meals in prison because there isn’t any particularly good reason otherwise. Getting to that answer from these facts is a little mini-history of the last thirty years of how the Supreme Court handles religion and the government.

Rich’s suit is based on a piece of legislation on RLUIPA, the Religious Land Use and Institutionalized Persons Act. RLUIPA is essentially twofold: it prevents municipalities from zoning in such a way that imposes a “substantial burden” on land use by religious institutions (where such zoning is used to accommodate programs receiving federal cash or that involve interstate commerce; more on that in a minute), and it makes it harder for prisons to get between criminals and their gods.

Now, the reason why the zoning part of the bill has so many qualifications to its applicability, like interstate commerce or the receipt of federal funds, is because RLUIPA’s prototype, the Religious Freedom Restoration Act or RFRA, was struck down as unconstitutional partially because it lacked some of these qualifications. RFRA was itself a reaction against a Supreme Court decision holding that religious freedom can be restricted whenever a compelling state interest requires it and it cannot be reached in a less intrusive fashion (in that case, the Court ruled that an Oregon law allowing state agencies to fire employees found to be using certain drugs was constitutional, despite it getting a peyote user fired even though the peyote use was for religious rituals). RFRA was crafted out of the that the Court was going to start imposing on other peoples’ religious freedom, too. RFRA was promptly struck down by the Court, not on First Amendment grounds, but because it intruded on the Court’s ability to say what constitutes “First Amendment Grounds.” In RFRA, the Court saw an uppity legislature, incensed at the Court’s temerity to foreclose some religious freedom (the freedom to use peyote) in favor of state interests, and squashed them.

RLUIPA tried to maintain the same basic legislative goals as RFRA, but includes that language about things like interstate commerce and federal money for the zoning section, and “compelling interests” for the prisoners’ rights section, because those are the very criteria set by the Supreme Court itself. In short, RLUIPA was Congress’s way of both having and eating its cake: it wanted more or less unlimited religious freedom for prisoners, easy land grabs for churches and synagogues, and it wanted it constitutional. To date, RLUIPA has not been found unconstitutional, and between the subtle but significant distinctions between it and RFRA, as well as the significantly changed composition of the Supreme Court between RFRA’s death and today (one new Bush appointee and two Obama appointees so far), it just isn’t possible for us to know how that would go.

Back to Bruce Rich. The Supreme Court, in addition to the multitude of specific tests that it uses for certain clauses and amendments, has “levels of scrutiny” for certain classes of laws that ask how closely a law needs to be examined in order to be a candidate for a more specific test. These levels range from the “rational basis” review, which applies to most ordinary Congressional enactments and which asks that a law be merely coherent, up through “strict scrutiny” and beyond, which burdens the government with proving that a law is the only practical way of achieving a vital state interest.

Because the Florida jail is trespassing on a positive right very specifically granted by the First Amendment, namely religion, the Court is undoubtedly going to apply the strict scrutiny level of examination, as it has consistently in cases like this for years. The Court is going to be very suspicious of the Florida prison’s already dubious-sounding claims about price and safety. I can’t speak to their specific circumstances, but the fact is that kosher food isn’t much different from non-kosher food price-wise, so that part of the objection is unlikely to be taken seriously. I can see some merit to the security claim, if you think about how they’re going to convey kosher food to the right people – separate serving lines? Bigger serving facilities? But remember, the government will have the burden of showing that denying kosher food to an Orthodox Jewish person who, after being deprived of a myriad of rights by virtue of just being in prison, has a demonstrable religious preference for it, is the best, which here means least intrusive upon religious practice, conceivable way of getting at the vital state interest of having safe and affordable prisons. I strongly doubt that having to label one more thing in the chow line is going to cut it as worth the bother.

Especially given the precedent Florida prisons have to rebut. A 2005 case, admittedly from a different circuit but pretty compelling in its fact pattern, saw the Supreme Court requiring an Ohio prison to bend over backwards to accommodate the needs of a Satanist, a Wiccan, and a white supremacist Christian. Their demands were for the possession of certain non-dangerous objects in their cells, though, whereas Bruce Rich may need as much as additional space in a cafeteria facility, so there might be some wriggle room for distinction there. There is another deceptive counterpoint in the precedent, Gardner v. Riska, deceptive in that its facially similar fact pattern has a fatal flaw. In Gardner, a Florida prisoner lost a suit asking for kosher meals. Game over, right? Well in that case, the case wasn’t dismissed because RLUIPA wouldn’t allow it, but because Gardner’s suit didn’t even deserve RLUIPA’s attention – it was more or less adjudicated to be a frivolous filing by a man who, according to undisputed affidavits from prison employees, was known to purchase and eat non-kosher foods even when there were kosher foods on the menu. So tough luck there.

All in all, my money is going on RLUIPA surviving a direct constitutional challenge and its provisions getting Mr. Rich his kosher meals. We’ll see how it turns out.

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Tags: Constitutional law, First Amendment, prisoners' rights, religious freedom, RLUIPA