The First Amendment protects “the free exercise” of religion, and this right extends to those in prisons and jails.  This has been established by the courts, see Cruz v. Beto, 405 U.S. 319, 322 (1972)(Buddhist prisoner has right to practice faith in prison), and by federal statutes. E.g., 42 U.S.C. sect; 2000cc et seq. (Religious Land Use and Institutionalized Persons Act)(“RLUIPA”).

What Constitutes Religious Exercise?

To enjoy protection under these provisions, a prisoner seeking to practice his or her religion must demonstrate, first, that their practice is, indeed, religious, and, second, that their beliefs are “sincerely” held.  As to what constitutes “religious” exercise, the courts have reviewed the question on a case-by-case basis, but such activities and beliefs need not be mainstream ones. See United States v. Seeger, 380 U.S. 163, 185 (1985)(“Courts . . . are not free to reject beliefs because they consider them ‘incomprehensible.’  Their task is to decide whether the beliefs professed by a [prisoner] are sincerely held and whether they are, in his own scheme of things, religious.”).  Certain groups have had mixed results as to First Amendment “religious” protections. Compare Loney v. Scurr, 474 F.Supp. 1186, 1192-95 (S.D. Iowa 1979)(Church of the New Song found to be a religion), with Goff v. Graves, 362 F.3d 543, 551 (8th Cir. 2004)(calling COTNS not a religious organization, but a “racist prison gang”).

To demonstrate that a belief is sincerely held, a prisoner is not required to prove that his or her beliefs are accurate, logical or shared by “all members of a religious sect”. Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. 707, 715 (1981).  While the practices of a particular group may be weighed in assessing a prisoner’s sincerity, even where clergy have rejected a prisoner’s view on the matter, courts are hesitant to become “arbiters of scriptural interpretation.” Id. Generally, courts make a subjective ruling that can consider the prisoner’s familiarity with his or her faith’s teachings, his or her adherence to the religion’s rules and tenets, and how long the prisoner has been involved with the faith group. Jackson v. Mann, 126 F.3d 316, 320 (2d Cir. 1999).

The Turner Test

Prison officials may impose regulations that affect the exercise of religious freedom.  To survive First Amendment scrutiny by the courts, such a regulation must be “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89-90 (1987).  Courts consider the following four factors: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it”; (2) whether there are “alternative means” of exercising the right despite the regulation; (3) the impact accommodation of the asserted right “have on guards and other inmates, and on the allocation of prison resources”; and (4) whether there are “ready alternatives” for the prison to meet the regulation’s goals without curtailing the prisoner’s religious freedom. Id., at 89-90.  The existence of “obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response to prison concern.’ ” Id., at 90.

A key aspect of the Turner test is that the courts are quite deferential to the judgment of prison officials in such matters. Thorneburgh v. Abbott, 490 U.S. 401, 407-08 (1989).  Generally, when a prison regulation is “reasonably related to legitimate penological interests,” it will be upheld. 482 U.S. at 89.

The RFRA and RLUIPA

Beyond the First Amendment’s Free Exercise Clause, prisoners also enjoy protections under the Religious Freedom Restoration Act (“RFRA”) and the RLUIPA.  The RFRA, passed in 1993, says that the government may not “substantially burden” a person’s exercise of their religion unless it demonstrates that doing so is “in furtherance of a compelling government interest,” and that it is “the least restrictive means of” doing so. 42 U.S.C. s. § 2000bb-1.  The RFRA applies to federal prisoners.  For state prisoners, RLUIPA applies the same standards.  Enacted in 2000, the RLUIPA applies when a state government accepts federal funding for correctional programs.  Virtually all do (this “Spending Clause” provision, U.S. Const. art. I, § 8, cl. 1, was necessitated by the Supreme Court’s 1997 ruling that the RFRA was unconstitutional as applied to the States. City of Boerne v. Flores, 521 U.S. 507, 532).

As to what constitutes a “substantial burden,” the courts have not reached a consensus, but the statutes appear to suggest that the burden need not affect a central facet of the religion to allow suit for enforcement. See, e.g., Coronel v. Paul, 316 F.Supp. 2d 868, 877 (D.Ariz. 2004)(pointing to RLUIPA provision defining “religious exercise” as “any exercise of religion, whether or not compelled by, central to, a system of religious belief”).

Litigation Under The RFRA/RLUIPA and the First Amendment

Under the more restrictive language of the RFRA/RLUIPA, it is prison officials who must demonstrate that a religious restriction is valid under those statues. Smith v. Ozmint, 578 F.3d 246, 252-54 (4th Cir. 2009).  By contrast, under the First Amendment’s Turner test, it is the prisoner who must “point to an alternative that fully accommodates the prisoners’ rights at de minimis cost to valid penological interests.” 482 U.S. at 91.

Courts reviewing RFRA/RLUIPA suits construe them “in favor of a broad protection of religious exercise,” 42 U.S.C. § 2000cc-3(g), but these laws must be applied “with particular sensitivity to security concerns.” Cutter v. Wilkinson, 544 U.S. 702, 722 (2005).  Yet, “a court should not rubberstamp or mechanically accept the judgments of prison administrators.” Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006).

The RFRA/RLUIPA adopts a “strict scrutiny” standard in the court, Lovelace, 472 F.3d at 198 n. 8, as such, when assessing whether prison administrators have utilized the “least restrictive means” of furthering a compelling government interest, the court looks to what the administrators might have “considered and rejected” as to less restrictive measures.  This “necessarily implies a comparison with other means.” Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007).  Simply put, whereas under {Turner}, the prisoner had to demonstrate that his or her religious practice did not unduly burden prison administrators, under the RFRA/RLUIPA, it is the latter who must explain to the court how it has reviewed less restrictive measures of achieving its penological goals.  With this in mind, the courts appear to have taken a less deferential approach to prison administrators who merely cite “security concerns” as a basis for curtailing religious activities. See, e.g., Couch v. Jabe, 679 F.3d 197, 204 (4th Cir. 2012)(reversing summary judgment in favor of prison as to Muslim beard restriction: “Prison officials simply failed to provide any explanation to which this court could defer”).

Creating An Enforceable Future: The RFRA and RLUIPA Blaze the Way

Prisoners whose religious exercise has been curtailed by prison regulations have powerful tools available for vitiating their rights in the courts, the RFRA and RLUIPA.  While the courts will always give great deference to prison security matters, these statutes provide a great measure of legal protection to those who wish to practice their religions sincerely.  Any attempt by prison administrators to unfairly burden such rights will always require strong justifications to survive court scrutiny.

(First published at: 

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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