Wednesday, September 19, 2007

Fed Picks Religion In Prison?

Check out this post (referring to this article) regarding alleged Executive Branch selection of "approved" books at Federal Prisons.

From my studies of the Religion Clause(s) of the First Amendment, I honestly am skeptical of the veracity of this report. It stretches my imagination to believe that the Attorney General would be interested in flying in the face of prevailing First Amendment jurisprudence.

For government to pick approved religious texts for prisoners, who are otherwise not able to exercise their religious freedom, the government would have to make a religious determination. The principle of government not answering religious questions was firmly settled over 50 years ago in United States v. Ballard, 322 U.S. 78 (1944). It said, "The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state." [There are probably much better cases on point, but I don't have time to avocationally write a legal memorandum.]


Thos said...

Here's a good Op Ed in the Washington Post on this matter. I'm still skeptical, though it's hard to see how a bad rumor would have such breadth and detail... The author gives his cogent analysis and does a nice job laying out the legal issue in layman's terms.

Anonymous said...

Hey, Thos. I haven't been reading your blog in a while. I was just wondering if you've manage to study your way into the Catholic Church yet?

Thos said...


I have not so managed, nor will I ever. If it was a tone of sarcasm that I detected in your post, it was not welcomed.

Peace in Christ,

Jim said...

As the editorial points out, the restriction is constitutional if the government can prove a compelling state interest and that the means are the least restrictive to achieve the interest.

And as it points out, the restriction easily passes the ends test. The question hangs on the means prong of the test.

What the government would argue, I'd suggest, is "administrative efficiency."

To be sure, that's almost always a loser under strict scrutiny. But the government might be able to make it fly in this case by two arguments:

[1] As the editorial pointed out, the rule got rid of a ton of books. The alternative was that someone read each book in the prison library to make an independent judgment whether the book increased or decreased the probability of violence. This is a huge burden, so large that it does not fall into the same category as the usually pretty lame "administrative efficiency" arguments made by government authorities.

[2] A case-by-case determination of whether specific books fail or pass the "no-advocacy of violence" test would actually increase government entanglement with religion. A single list avoids different individuals at different prisons reading each book and making individual assessments (that possibly differ across the prisons).

I don't know whether those arguments would fly, but they're the only ones I could think of that support the government's case.

I typically go into prison once or twice a week as a volunteer to meet with a group of Christian inmates. While this regulation might be constitutional, it'd be devastating for the guys, particularly for the most committed Christians.

In any event, it increases the need for Christians to go into the prisons to interact with these men (and women) on a personal level. Books cannot fully meet the need for personal discipleship and encouragement anyway. But limit the number of books on top of that, and the need for Christians personally to become involved becomes even more compelling.

Thos said...


I'm becoming a big fan of you/yours! Thanks for the post. You have convinced me that strong arguments *will* be made on both sides. It does seem like a hopeless cause at the end of the day though.

Prisoners get Rights Light compared to you and me. But of lesser Rights they enjoy, freedom of religion gets a heightened position. The court uses "strict scrutiny" (making it very hard for the government to prevail) when fundamental liberties are at play and, not having researched the case law, my hunch is that THIS fundamental liberty -even for prisoners- will kick in a strict scrutiny standard for the Courts. Thoughts?

I agree that the means (not the ends) will be where the battle lines will be drawn. Your arguments were well done, and I'm sure you can think of equally persuasive opposing views.

Does it follow that if a prisoner has less rights to exercise religious freedom that the government has less restriction on its ability to establish religion? Again just a hunch, but the Court has preferred reading the Religion Clause as two clauses. This reminds me of Judge Rogers dissent in the recent Boumediene case, where she argues that restrictions on government are not co-extensive with liberties held by citizens. If the establishment clause is viewed in isolation of the liberty granted, than the fact that the government is 'establishing' in prison should receive the same scrutiny as in a school, in the military, etc.

On the off chance I still make sense, I'll go a little further. It seems from 1st Amendment jurisprudence of the recent past (Warren court onward?) that picking some books over others requires answering religious questions (which is impermissible). The nature of this approved-books program (as the N.Y. Times claims it to be, anyway) is to allow the respective "religions" of Christianity or Judaism 150 approved books. But who is to say that Catholicism isn't its own religion and should have a separate 150 books? Or Mormonism isn't just a branch of Christianity so has to share its 150 with the rest of us? Likewise, when the plaintiffs press ahead with evidence that suggests that the 150 approved Christian books have a Calvinistic or Evangelical bent, I think several judges (justices, perhaps) will develop instant ulcers (just a hunch). That will smell way too much like government answering a religious question, or preferring one religious view over another.

You sound much wiser than I [especially on this matter], so I am blessed to hear your views. Maybe I'll take the time to do some bona fide legal research and not just go with my hunches...

And may God bless you in your prison ministry! I have been blessed for taking up a pen pal through Prison Fellowhsip, and recommend we follow Christ's words to remember prisoners, shut-ins and the like!