Race Soc Probl (2009) 1:36–44
DOI 10.1007/s12552-009-9003-5

Jailhouse Islamophobia: Anti-Muslim Discrimination in American
Prisons
Kenneth L. Marcus

Published online: 31 March 2009
Ó Springer Science+Business Media, LLC 2009

Abstract The post 9/11 surge in America’s Muslim
prison population has stirred deep-seated fears, including
the specter that American prisons will become a breeding
system for ‘‘radicalized Islam.’’ With these fears have
come restraints on Muslim religious expression. Mistreatment of Muslim prisoners violates the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA),
which Congress passed in part to protect prisoners from
religious discrimination. Despite RLUIPA, prisoners still
face the same challenge that preceded the legislation.
Ironically, while Congress directed courts to apply strict
scrutiny to these cases, the courts continue to reject most
claims. One reason is that many courts are applying a
diluted form of the legal standard. Indeed, the ‘‘war on
terror’’ has justified increasing deference to prison administration to the detriment of incarcerated Muslims and
religious freedom.

Lillie and Nathan Ackerman Chair in Equality and Justice in
America, Baruch College School of Public Affairs, The City
University of New York; Director, Initiative on Anti-Semitism and
Anti-Israelism, Institute for Jewish & Community Research; and
former Staff Director, U.S. Commission on Civil Rights (2004–2008).
This article arose in part from the author’s experience overseeing the
Civil Rights Commission’s 2007–2008 research project on religious
discrimination in American prisons. The article benefits from the
author’s discussions with former Commission colleagues, including
Gail Heriot, Robert Lerner, David Blackwood, and Kim Tolhurst, as
well as research provided by law clerks John Barone, Nagmeh
Shariatmadar, and Lianne Labossiere. At Baruch College, Amita
Dahiya has provided able research assistance.
K. L. Marcus (&)
Bernard M. Baruch College School of Public Affairs,
The City University of New York, 43328 Crystal Lake Street,
Leesburg, VA 20176, USA
e-mail: klmarcus@aol.com

Keywords Islamophobia Á Muslims Á Prisoners’ rights Á
Religious freedom Á Religious discrimination Á
Religious Land Use and Incarcerated Persons Act

Introduction
Muslims constitute nearly a tenth of the American federal
prison population and their numbers are rapidly rising.1
The post 9/11 surge in Muslim prison population has stirred deep-seated fears and resentments, including the
specter that the American prison system will become a
breeding system for ‘‘radicalized Islam.’’2 With these fears
have come restraints on Muslim religious expression, with
prison officials citing a need to maintain orderly prison
administration and ensure homeland security.3
Treatment of Muslim prisoners frequently conflicts with
recent legislation enacted to protect prisoners from religious discrimination. Nine years ago, Congress passed the
Religious Land Use and Institutionalized Persons Act of
1

U.S. Commission on Civil Rights, Enforcing Religious Freedom in
Prison (2008), p. 13 (indicating that Muslims constitute approximately 9.3 percent of the U.S. federal prison population but only 0.6
percent of the general adult population); see also Al-Amin 2008, p. 2
(discussing the surge in Muslim prison conversions). Muslims have
become an even larger portion of some European prison populations,
which has also fueled fear and resentment in Europe. See Bawer 2006
at 56–57.
2
See, e.g., Colson 2002, available at http://opinionjournal.com/
editorial/feature.html?id=110001885; Marks 2006, available at
http://www.csmonitor.com/2006/0920/p03s02-ussc.html (‘‘The radicalization and recruitment of terrorists present a threat of ‘unknown
magnitude,’ according to national security experts.’’).
3
See, e.g., Atkins 2008, p. 2 (‘‘Prison radicalization primarily occurs
through anti-U.S. sermons provided by contract, volunteer, or staff
imams…’’).

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Race Soc Probl (2009) 1:36–44

2000 (RLUIPA)4 in part to protect prisoners from religious
discrimination. Four years ago, in the case of Cutter v.
Wilkinson,5 the United States Supreme Court unanimously
upheld RLUIPA against constitutional challenge.
Despite this legislation, Muslim prisoners continue to
document countless examples of discrimination in facilities
around the country.6 Recent anti-Muslim allegations have
included, for example, refusal to honor halel dietary
restrictions, to allow prisoners to wear religious garb (such
as the keffiyeh or hijab), or to obtain access to chapels or
religious services; denial of Korans and other religious
materials; interference with observance of holidays such as
Ramadan, Eid-al-Ghadeer, Muharram, and Ashura; and
forced participation in Christian religious services. Such
cases have increased sharply over the last few years.
Ironically, while Congress directed the courts to apply
the most stringent form of judicial scrutiny to these cases,
the courts continue to reject most claims. One reason is
that, despite RLUIPA and Cutter v. Wilkinson, many courts
are applying a diluted form of the applicable legal standard.

Anti-Muslim Discrimination in the United States Prison
System
Institutional Intolerance of Religion
Some experts argue that religious activity is ‘‘often barely
tolerated and in some institutions even discouraged’’ in
American prisons today.7 Members of virtually all religions, including mainstream Christian denominations, have
testified that they have been denied basic religious freedoms while under incarceration, including access to Bibles
and religious services and programs.8
Prison staff, fellow inmates, chaplains, and faith-based
service providers have all been involved in perpetrating
religious discrimination in prison. Prison chaplains report
that religious services are often delayed, interrupted, or
cancelled for no apparent reason; and custodial staffs are
perceived as dismissive or contemptuous of those who
participate in religious self-improvement programs.9 Correctional staff often distrusts prison chaplains and
volunteers ministering to prison populations, questioning
the motives of those who minister to those who have not
conformed to social conventions.10 Worse, some staff may
4

42 U.S. C. §§ 2000 cc et seq.
544 U.S. 709 (2005).
6
See, e.g., Al-Amin (2008).
7
Nolan 2008 at 2, 3–5.
8
Id. at 2.
9
Al-Amin 2008 at 7.
10
Atkins 2008 at 1.
5

37

believe that it is appropriate to punish prisoners, on an ad
hoc basis, by denying them access to religious worship.11
Additionally, religious minority inmates may face persecution by other inmates; after all, prisons do house neoNazis, ‘‘Christian Identity’’ supremacists, and others convicted of religiously motivated hate crimes.12 Moreover,
some chaplains exacerbate these problems by denigrating
religious minority prisoners, notably Muslims, in a manner
that provokes physical conflict.13 Finally, faith-based service providers, servicing contracts with federal and state
prisons, have provided various special material benefits to
inmates of their faith that are denied to others,14 and have
disparaged prisoners of other faiths.15 In some cases, discrimination may arise from an unconscious presumption in
favor of mainstream Protestant religious practice16 (which
Chaplain Patrick M. McCollum calls the ‘‘Dominant
Religion Lens Factor’’)17 or an explicit bias in favor of
fundamentalist or evangelical programming (see footnote
16).
Unsurprisingly, non-mainstream religions of all kinds
report higher levels of religious animus.18 This particularly
includes Muslim inmates but also extends to institutionalized persons of other faiths (see footnote 9). Wiccan
inmates, for example, have been denied access to appropriate clergy while dying and have been refused
chemotherapy except on the condition that they remove an
approved Wiccan pentacle medallion.19

Discrimination Specifically Directed Against Muslims
While other minority religious prisoners face considerable
discrimination, the situation facing Muslim prisoners is
both larger and more complex. This is due to their substantial percentage of the prison population, concerns about
Islamic radicalization in prison, and particular animosities
held toward members of the Muslim faith.20 During the
11

Friedman 2008 at 1.
Id.
13
Id. at 4.
14
Americans United for Separation of Church & State v. Prison
Fellowship Ministries, 432 F. Supp. 862, ____ (S.D. Iowa 2006), aff’d
in part and rev’d in part on other grounds, 509 F.3d 406, 413–16, 424
(8th Cir. 2007); Luchenitser 2008 at 1, 4–6.
15
Luchenitser 2008 at 3–4; Americans United, 432 F. Supp.2d at
899, 900, 909–910; Americans United, 509 F.3d at 425.
16
Friedman 2008 at 2.
17
McCollum 2008 at 3.
18
Id. at 1–2 (‘‘While practices differ from state to state, I have found
discrimination against non-traditional religions everywhere.’’).
19
Id. at 1.
20
For a general discussion of contemporary anti-Muslim attitudes,
see Gottschalk and Greenberg 2008.
12

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38

2001–2006 period, Muslims brought the greatest number of
religious discrimination claims under RLUIPA. During that
period, Muslims brought 62 out of the 229 cases analyzed.21 This represents 27 percent of the cases, or nearly
three times Muslims’ share of the prison population.
Muslim prisoners and their advocates report being
denied access to religiously required (Halal) meats22 or
other compliant foods,23 even when institutions have been
presented with opportunities to acquire Halal meats at
lower costs than the non-compliant meats currently provided.24 Under RLUIPA, courts have generally but not
always been receptive to inmates’ claims regarding religiously motivated dietary restrictions.25
Prison officials have reportedly prohibited facial hair
longer than one quarter inch beards,26 or prohibited the
wearing of any beards at all27; banned Kufi prayer caps,28
Thawbs (prayer robes),29 or the use of prayer beads around
necks and under shirts,30 on the ground that inmates are
required to wear prison uniforms.
Muslim prisoners have reported being prevented from
performing the ‘‘Khutba’’ sermon during the Friday weekly
prayer,31 participating in Jumu’ah services,32 or reciting

Race Soc Probl (2009) 1:36–44

Islamic texts in Arabic.33 In other cases, they have
reportedly been required to choose between access to
Muslim services or access to a law library,34 been denied
access to a Muslim chaplain,35 or been penalized for participation in Muslim religious services.36 In some facilities,
Sunni Muslims are required to pray jointly with Shi’ite
Muslims37 or with members of the Nation of Islam.38 Some
Shi’ite prisoners have alleged refusal to allow separate
Shi’ite Jumah services as part of prison practices systematically discriminating against Shi’ite practices.39
Similarly, they have reportedly been barred from attending
holiday services eating holiday meals in cell while kept in
disciplinary keeplock (see footnote 34).
Prisoners have reported being denied access to free
Qura’ans40; restricted in their access to the religious literature of various Muslim sects, such as the Five Percent
Nation41 (a spin-off of the Nation of Islam); denied the
possession or use of prayer oils42 or other religious items,
such as incense, leather socks, compass, and halal toothpaste.43 They have been barred from possessing prayer rugs

21

U.S. Commission on Civil Rights, Religious Freedom of Incarcerated Persons (Forthcoming 2008).
22
Spruel v. Clarke, Case No. C06-5021 RJB, W.D. Washington,
2007 U.S. Dist. LEXIS 39772, *7–8, May 31, 2007; Bilal v. Lehman,
C04-2507 JLR, 2006 U.S. Dist. LEXIS 93152, 2006 U.S. Dist. LEXIS
89430 (W.D. WA); Phipps v. Morgan, CV-04-5108, 2006 U.S. Dist.
LEXIS 12199 (E.D. WA. 2006); Pratt v. Corr. Corp. of America, 124
Fed. Appx. 465 (8th Cir. 2005); Al Ghashiyah v. Wis. Dept. of Corr.,
250 F.Supp.2d 2016 (E.D. WI. 2006).
23
See, e.g., Allah v. Jordan Duster et al., 04–1083, 2007 U.S. Dist.
LEXIS 56631, *4 (W.D. Ill.), August 3, 2007; Mayweathers v.
Hickman, Civil No. 05-CV-713 WGH (CAB), 2006 U.S. Dist. LEXIS
95882 (S.D. Cal. 2006); Holiday v. Giusto, 2004 U.S. Dist. LEXIS
16348 (D.OR 2004).
24
Al-Amin 2008 at 10.
25
See, generally, Dilg 2008 , p. 3.
26
Barnes v. Molett, V-05-014, 2006 U.S. Dist. LEXIS 69303 (S.D.
TX. 2006); Nicholas v. Oxmint, 8:05-3472-RBH, 2006 U.S. Dist.
LEXIS 67592 (D.SÁC. 2006); Daker v. Wetherington, 2005 U.S. Dist.
LEXIS 44485, 469 F.Supp.2d 1231 (N.D. GA.); Taylor v. Groom,
Cockrell, 02–21316, 74 Fed. Appx. 369 (5th Cir. 2003).
27
Williams v. Ferguson, S-04-0998, 2006 U.S. LEXIS 61586 (E.D.
CA. 2006).
28
Aziyz v. Tremble, Civil Action No. 5:03-cv-412 (HL) (M.D. Ga.),
2008 U.S. Dist. LEXIS 7079, January 31, 2008.
29
See Abdullah v. Frank, 2007 U.S. Dist. LEXIS 13215, *4 (Case
No. 04C1181), 2007 U.S. Dist. LEXIS 13215 (E.D. Wisc. February
26, 2007).
30
Charles v. Frank, 101 Fed. Appx. 634 (7th Cir. 2004).
31
Shabazz v. Ark. Dept. of Corrections, 157 Fed. Appx. 944 (8th Cir.
2005).
32
Eley v. Herman, 1:04-cv-416, 2007 U.S. LEXIS 42197 (N.D. IN.
2007); McCree v. Pocock, CIVIL ACTION FILE NO. 1:06-CV-1279TWT, (N.D. GA.), 2007 U.S. Dist. LEXIS 44594, June 18, 2007;
Larry v. Goetz, 06-C-197, 2006 U.S. Dist. LEXIS 32164 (W.D. Wis.

123

Footnote 32 continued
2006); Earl v. Gould, 192 Fed. Appx. 226 (4th Cir. 2006); Thomas v.
Saafir, C 06-0184, 2006 U.S. Dist. LEXIS 32187 (N.D. CA. 2006);
Muhammed v. Page, 02-298, 2006 U.S. Dist. LEXIS 16630 (S.D. Ill.
2006); Walmuller v. Bennett, 2005 U.S. Dist. LEXIS 35066 (D.ID.
2005).
33
Stephens v. Federal Bureau of Prisons, 06-CV-319-JBC, 2006 US.
Dist. LEXIS 72955, 2006 U.S. Dist. LEXIS 79389 (E.D. KY.).
34
See Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006).
35
Id.
36
Mayweathers v. Terhune, Newland et al., 328 F.Supp.2d 1086
(E.D. CA. 2004); Al-Amin 2008, p. 9.
37
Pugh v. Goord, 345 F.3d 121 (2nd Cir. 2003); El Isquierdo v.
Crawford, Case No. 1:05CV192 CDP, E.D. Mo., 2007 U.S. Dist.
LEXIS 71608 * 1 (September 26, 2007). See Salahuddin v. Goord,
467 F.3d 263 (2d Cir. 2006).
38
Abdullah, Perez. Et al. v. Wis. Dept. of Corrections, 2005 U.S.
Dist. LEXIS 27999 (E.D. Wis. 2005).
39
Orfan v. Goord, 411 F.Supp. 2d 153 (N.D. N.Y. 2006).
40
See, e.g., Eley v. Herman, 1:04-cv-416, 2007 U.S. LEXIS 42197
(N.D. IN. 2007); Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006);
Grant v. Sutton, 04-326-JPG, 2006 U.S. Dist. LEXIS 70076 (S.D. Il.
2006); Larry v. Goetz, 06-C-197, 2006 U.S. Dist. LEXIS 32164 (W.D.
Wis. 2006); Larry v. Goetz, 06-C-197, 2007 U.S. Dist. LEXIS (W.D.
WI. 2007).
41
Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002); Marria v.
Broaddus, 200 F.Supp.2d 280 (S.D. N.Y., 2004).
42
See, e.g., Hammons v. Saffle, No. 02–5009, 348 F.3d 1250 (10th
Cir. 2003); Charles v. Verhagen, Grank, Litscher, 348 F.3d 601 (7th
Cir. 2003); Shidler v. Moore et al., Case No. 3:05-CV-804 RM, N.D.
IN, 008 U.S. Dist. LEXIS 8872, February 4, 2008; Salgado v. Grams,
06-C-598-C, 2006 US. Dist. LEXIS 7564, 2007 US. Dist. LEXIS
26213 (W.D. WI).
43
Vega v. Lantz, 3:04CV1215, US. Dist. LEXIS 69120 (D. Conn.).

Race Soc Probl (2009) 1:36–44

or from placing linens or towels on the floor as a prayer
surface.44
The Bureau of Prisons attempted to address the problem
of prisoner radicalization, discussed supra, through its
now-abandoned Standardized Chapel Library Project.45
This program was developed to purge all prison chapel
libraries of all items except for a handful of items on an
approved religious reading list.46
Muslim inmates also must cope with prison officials’
mistreatment of loss of religious objects. When this mistreatment is negligent (or when, at any rate, the inmate
cannot prove that the mistreatment is intentional), the
responsible officials are shielded from federal liability. In
2008, the Supreme Court denied recovery to a Muslim
inmate based on the Bureau of Prison’s allegedly negligent
loss of his Qur’an, prayer rug, and various religious magazines, holding in a divided opinion that the Federal Tort
Claims Act exempts this form of negligence from its
waiver of federal sovereign immunity.47
Muslim prisoners have reported that they have been
barred from celebrating Ramadan,48 Eid ul Fitr,49 or other
holidays; that they have been unable to participate in
Ramadan worship for breaking the fast50; and that prison
authorities have refused to acknowledge Shi’ite holidays,
such as Eid-al-Ghadeer, Muharram, or Ashura.51
The Homeland Security Justification
In many cases, prison authorities have justified restrictions
on Muslim prisoners as a necessary means of ensuring not
only prison safety but also homeland security. Their
argument is that Muslim religious services may be used as
a means of fostering Islamic radicalization. Prison radicalization is a phenomenon that has been defined as ‘‘the
process by which inmates … adopt extreme views,
including beliefs that violent measures need to be taken for
political or religious purposes.’’52 It is a global
44
Mohammad v. Kelchner, 2005 U.S. Dist. LEXIS 40762 (M.D. PA.
2005).
45
Cilluffo 2008, p. 6.
46
Id.
47
Ali v. Federal Bureau of Prisons (No. 06–9130), 204 Fed. Appx.
778 (2008).
48
Earl v. Gould, 192 Fed. Appx. 226 (4th Cir. 2006); Mallory v.
Winchester4:06-CV-136 AS, 2006 U.S. Dist LEXIS 90581 (N.D. IN.
2006).
49
Couch v. Jabe, 2006 U.S. Dist. LEXIS 68216 (W.D. VA.).
50
Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006).
51
See, e.g., Rahman v. Goord, 04-CV-6368 CJS, W.D.N.Y., 2007
U.S. Dist. LEXIS 32680, *2, May 3, 2007.
52
The George Washington University Homeland Security Policy
Institute (2006), p. 3 (quoting Department of Justice, Office of
Inspector General Review, 2004).

39

phenomenon, encountered to a greater extent in Europe, the
Middle East and Latin America than in the United States.53
However, it is a particular source of concern the United
States, with the world’s largest prison population and
highest incarceration rates, and an enormous challenge in
the prospect that radicalized prisoners could become terrorists as a result of their experiences under incarceration.54
This concern has developed in response to numerous
examples of terrorist incidents that were advanced in some
measure by the radicalization of certain prison inmates.55
As Abu Musab al-Zarqawi has said, ‘‘prison makes our
fight stronger.’’56
This phenomenon takes many forms, but observers have
expressed concern with two particular variations: the socalled ‘‘Jailhouse Islam,’’ which incorporate violent prison
culture into religious practice using a ‘‘cut-and-paste’’
version of the Qur’an and ‘‘Prislam,’’ in which prisoners
join Islamic gangs for protection and convert out of
necessity (see footnote 54). Prisons are fertile environments for radicalization, since inmates exhibit high-risk
characteristics of youth, unemployment, and alienation, as
well as psychological factors such as high levels of personal distress, cultural disillusionment, lack of intrinsic
beliefs or values, dysfunctional families, and dependent
personality tendencies,57 exacerbated by overcrowding and
prisoners’ need for protection,58 in an inherently violent
environment.59
Ironically, anti-Muslim discrimination in American
prisons may exacerbate the problem of prison radicalization. For example, the inadequate number of legitimate
Muslim religious providers may create an opportunity for
extremists to fill the role of religious service providers.60
As Frank Cilluffo has observed, increasing the availability
of legitimate Muslim religious services may decrease the
opportunities for prison radicalization.61 Similarly, religious faith and practice can help to ameliorate the
problem.62

53

Cilluffo 2008 at 3, 5.
Id. at 2.
55
See, e.g., The George Washington University Homeland Security
Policy Institute (2006), p. 2; Cilluffo 2008 at 3.
56
Id. at 1.
57
Id. at 1, 4.
58
Cilluffo 2008 at 1.
59
The George Washington University Homeland Security Policy
Institute 2006 at 4.
60
Cilluffo 2008 at 4; The George Washington University Homeland
Security Policy Institute (2006) at 6.
61
Cilluffo 2008 at 4.
62
Id. at 6.
54

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Legal Background
American prisoners were granted little religious freedom
during the early years of the United States. Interestingly,
the term ‘‘penitentiary’’ was first used in eighteenth-century Pennsylvania to describe institutions established to
induce convicts to reflect and repent.63 This ideal, which
developed out of William Penn’s history of incarceration,
did not survive through the nineteenth century. Some early
cases hinted at an inchoate free exercise right for incarcerated persons, but courts usually considered an inmate to
be, in an oft-quoted formulation, ‘‘a slave of the State.’’64
Some Protestants had limited ability to worship, but persons of other faiths were not much tolerated.65
During the 1960s and 1970s, however, federal courts
became increasingly responsive to prisoners’ religious
claims. This change was largely instigated by demands
from Black Muslim prisoners.66 At the time, the Court was
highly protective of religious free exercise generally,
announcing in Sherbert v. Verner that ‘‘[t]he door of the
Free Exercise Clause stands tightly closed against any
governmental regulation of religious beliefs as such.’’67 In
Sherbert, the Court held that strict scrutiny is required
when generally applicable, facially neutral government
action places a ‘‘substantial burden’’ on the exercise of
religion, such as when an individual must choose between
adhering to religious conviction or enjoying governmental
benefits.68 As the Supreme Court explained in another case
during this period, ‘‘[p]risoners do not forfeit all constitutional protections by reason of their conviction and
confinement in prison.’’69
This period of relative tolerance for prisoner religious
exercise ended when the Supreme Court handed down its
decision in O’Lone v. Estate of Shabazz.70 In that case, the
Court announced that it would not apply heightened scrutiny for prisoner free exercise claims. Instead, it would ask
only whether the prisons actions were ‘‘reasonably related
to legitimate penological interests.’’
In the years between Sherbert and O’Lone, the Court
professed to apply strict scrutiny to cases in which a substantial burden on religious activity was alleged. In fact, in

63

Note, Harvard Law Review Editors 2002 at 1892 (quoting Richard
G. Singer & William P. Statsky, Rights of the Imprisoned: Cases,
Materials and Directions 4 (1974)).
64
Note, Harvard Law Review Editors 2002.
65
Mushlin 1993 at 5–6.
66
Id.; Smith 1993; see, generally, King 1969, pp. 300–304.
67
374 U.S. 398 (1963).
68
Id. at 406.
69
Bell v. Wolfish, 441 U.S. 520, 545 (1970).
70
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).

123

Race Soc Probl (2009) 1:36–44

all but a handful of cases, the Court’s application of this
standard of review was quite lax, leading prominent
scholars to assert that the standard was ‘‘strict in theory,
feeble in fact.’’71 In 1990, the Court pulled back more
broadly (i.e., outside the prison context) from the liberality
it had shown in Sherbert, announcing in Employment Div.,
Dept. of Human Resources of Ore. v. Smith,72 that the Free
Exercise Clause of the U.S. Constitution does not inhibit
enforcement of otherwise valid, neutral laws of general
applicability that incidentally burden religious conduct.73
The Court continued to recognize an exception, however,
when government actions manifestly target religious
practice.74
The Supreme Court’s opinion in Smith has been roundly
criticized by both academic commentators and public
officials. Congress and the President responded to the
decision by passing two important statutes. In 1993, Congress passed the Religious Freedom Restoration Act
(RFRA).75 A Senate report notes that ‘‘as applied in the
prison and jail context, the intent of [RFRA] is to restore
the traditional protection afforded by prisoners to observe
their religious rights which was weakened by the decision
in O’Lone v. Estate of Shabazz.’’76 RFRA provides that
‘‘Government may substantially burden a person’s exercise
of religion only if it demonstrates that application of the
burden to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.’’77
This statute (which the Supreme Court later found unconstitutional as applied to the states and its subdivisions in
City of Flores v. Boerne78) continues to govern federal
actions, including the conduct of the federal Bureau of
Prisons.79
State prisoners did not fare well under RFRA. During
the four years between RFRA’s passage and its partial
invalidation, lower courts ruled against prisoners in over
90% of cases,80 effectively gutting its enforcement.81 As
71
Christopher L. Eisgruber and Lawrence G. Sager, The Vulnerability of Conscience, 61 U. CHI. L. REV. 1245 (1994). See, generally,
Winkler (2006).
72
494 U.S. 872 (1990).
73
Id. at 879.
74
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520 (1993).
75
42 U.S. C. §§ 2000cc et seq.
76
Fischer (2001), pp. 243–244 (quoting S. Rep. No. 103–111, at 8
(1993), reprinted in 1993 U.S. C.C.A.N. 1892, 1899.
77
Id. at 2000bb-1(b).
78
City of Flores v. Boerne, 521 U.S. 507 (1997).
79
See, e.g., O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir.
2003).
80
Lupu (1998) pp. 575, 607–617.
81
Daubatz, ‘‘RLUIPA at Four,’’ 28 Harv. J.L. & Pub. Pol’y at 504.

Race Soc Probl (2009) 1:36–44

Ira C. Lupu has shown, the principal way in which courts
weakened RFRA during its 4 years of general applicability
was to disregard the ‘‘least restrictive means’’ test and
forgive government regulations that were supported by
practical or budgetary considerations.82 Since this result
could not be easily squared with the text of the legal
standard, courts typically relied instead on a Senate committee report on RFRA,83 which stated that, ‘‘the
committee expects that the courts will continue the tradition of giving due deference to the experience and expertise
of prison and jail administrators in establishing necessary
regulations and procedures to maintain good order, security, and discipline, consistent with consideration of costs
and limited resources.’’84
Against this backdrop, RLUIPA appeared to represent a
remarkable change (see footnote 81). In 2000, responding
to RFRA’s partial invalidation, Congress held a number of
hearings, over a 3-year period, to gather facts about the
extent of religious discrimination across the country.85 For
example, Congress heard that in one Ohio prison officials
refused to provide Muslims with Halal food, although they
provided Kosher food to Jewish inmates and that Qu’urans
and other prayer books were frequently confiscated, damaged, or discarded.86 In a joint statement, the bill’s
sponsors, Senators Edward Kennedy and Orrin Hatch,
concluded that ‘‘[w]hether from indifference, ignorance,
bigotry, or lack of resources, some institutions restrict
religious liberty in egregious and unnecessary ways.’’87
Congress passed the RLUIPA to ensure that state and
local prison inmates would receive the same stringent
standard of review applied to federal prisoners under
RFRA. Strikingly, both the Senate and the House of Representatives were unanimous in its passage.88 RLUIPA
prohibits federal and state agencies from undertaking
actions that impose a ‘‘substantial burden’’ on the religious
exercise of an incarcerated person, even if the burden
results from a rule of general applicability, unless the
government can demonstrate that imposition of the burden

41

furthers a ‘‘compelling governmental interest’’ and is the
‘‘least restrictive means’’ of furthering that interest.89
While RLUIPA does not define such terms as ‘‘compelling
government interest’’ or ‘‘least restrictive means,’’ the
legislation clearly intends to reinstate the strict scrutiny test
that prevailed, at least in theory, between Sherbert and
O’Lone/Smith.
The Supreme Court unanimously affirmed RLUIPA
against an Establishment Clause challenge in Cutter v.
Wilkinson.90 In Cutter, Ohio prison inmates sued the state’s
department of corrections for failing to accommodate their
religious exercise of non-mainstream religions (e.g.,
Satanist, Wicca, and Asatru religions, and the Church of
Jesus Christ Christian).91 Specifically, they alleged that
prison officials retaliated and discriminated against them
by denying them access to religious literature, denying
them the same opportunities for group worship afforded to
adherents of mainstream religions, forbidding them to
adhere to religiously required codes of dress and conduct,
withholding religious ceremonial objects, and failing to
provide them with a chaplain trained in their faith.92 In
response, the prison officials contended that RLUIPA’s
institutionalized persons provision improperly advances
religion in violation of the Establishment Clause.93
Justice Ruth Bader Ginsburg wrote the unanimous
opinion for the Court, affirming RLUIPA against this
challenge, but doing so in a way that may undermine the
statute’s effectiveness. The decision was initially received
as a significant victory for religious freedom,94 but a closer
look suggests that the victory was far from complete.
While Justice Ginsburg reasoned that the statute alleviates ‘‘exceptional government-created burdens’’ on
religious exercise,95 she also emphasized, that the statute
does not improperly elevate accommodation of religion
over penal officers’ interest in maintaining order and
safety.96 In particular, Ginsburg indicated that lawmakers

82

Lupu (1998) pp. 575, 596.
Gaubatz, ‘‘RLUIPA at Four,’’ 28 Harv. J.L. & Pub. Pol’y 501,
550–552 and cases cited at 552 n.226.
84
Senate Report 103–111 at 10 (1993); 146 Cong. Rec. S7775 (daily
ed. July 27, 2000).
85
Cutter, 544 U.S. 709, 716 n.5 (2005); see, generally, Daubatz,
‘‘RLUIPA at Four,’’ 28 Harv. J.L. & Pub. Pol’y at 510.
86
Cutter, 544 U.S. at 716 n.5.
87
Id. at 716 (quoting 146 Cong. Rec. S7774, S7775) (joint statement
of Sen. Hatch and Sen. Kennedy on RLUIPA).
88
See S.2869, Bill Summary and Status for 106th Congress (2000),
available at http://thomas.loc.gov/cgi-bin/bdquery/z?d106:SN02869:
222L&summ2:m& Daubatz, ‘‘RLUIPA at Four,’’ 28 Harv. J.L. &
Pub. Pol’y at 504–505.
83

89

42 U.S. C. at § 2000cc-1(a).
Id. at §§ 2000cc et seq.
91
Id. at § 2000cc-1(a) at 712.
92
Id. at § 2000cc-1(a) at 712–13.
93
Id. at § 2000cc-1(a) at 713.
94
Goldberg at 1404 (arguing that ‘‘[u]nder Cutter, religion has
achieved a special status it has not enjoyed in years, and this result
can only be explained by the Free Exercise Clause…religion has not
only regained parity with free speech, it now receives greater
protection in the prison setting.’’).
95
Cutter, 544 U.S. at 720.
96
Id. at 722.
90

123

42

were mindful of the urgency of prison security, and that
they anticipated that courts would apply RLUIPA with
‘‘due deference’’ to the ‘‘experience and expertise’’ of
prison administrators in establishing rules to maintain
order, security, and discipline, consistent with budgetary
considerations.97 For this reason, Ginsburg stated that
while ‘‘prison security is a compelling state interest,’’
nevertheless ‘‘deference is due to institutional officials’
expertise in this area.’’98
There is an unavoidable tension between Justice Ginsburg’s affirmance of RLUIPA’s strict scrutiny test––which
is by definition the opposite of deferential—and her insistence that the courts should nevertheless apply it in a
deferential manner. By having it both ways, as it were,
Ginsburg may appear to strike a moderate compromise, but
the result is an incoherent legal doctrine. Courts are
directed to apply the strict scrutiny but to do so in a
manner, which is inconsistent with the requirements of that
standard. Ironically, Ginsburg explicitly relies on an earlier
opinion, which has been criticized on particularly that
basis. Citing the Supreme Court’s earlier decision in the
University of Michigan affirmative action litigation,
Ginsburg explains that ‘‘context matters’’ in the application
of strict scrutiny, by which she means that different degrees
of deference are required depending on the circumstances.99 In that case, Justice Sandra Day O’Connor’s
opinion, applying the same test in a deferential manner to
the use of race-preferential affirmative action in university
admission, was strongly criticized for undermining the
standard of review (see footnote 84).
Moreover, in relying upon the deferential language of
Senators Kennedy and Hatch, Justice Ginsburg tacitly
incorporated the very language that had created problems
for prison inmates under RFRA: ‘‘the courts will continue
the tradition of giving due deference to the experience and
expertise of prison and jail administrators in establishing
necessary regulations and procedures to maintain good
order, security, and discipline, consistent with consideration of costs and limited resources’’ (see footnote 84).
Unfortunately, it is precisely this same language that
RLUIPA’s co-sponsors repeated in their joint statement
and which Justice Ginsburg approvingly quoted. Worse,
Ginsburg failed to cite the following sentence in both the
RFRA Senate Committee Report and the RLUIPA joint
statement: ‘‘At the same time, however, inadequately formulated prison regulations and policies grounded on mere

97

Id. at 723 (quoting Joint Statement 775, in turn quoting S. Rep. No.
103–111 at 10).
98
Id. at 725 n. 13.
99
Id. at 725 n. 13 at 723 (quoting Grutter v. Bollinger, 539 U.S. 306
(2003)).

123

Race Soc Probl (2009) 1:36–44

speculation, exaggerated fears, or post-hoc rationalizations
will not suffice to meet the act’s requirements.’’100
At least one court has acknowledged this problem with
surprising candor:
Some courts, in examining prison regulations under
RFRA and RLUIPA, have softened the compelling
interest test to allow speculative administrative
judgments concerning security and cost to suffice to
allow the regulation to survive strict scrutiny …It is
also an approach that is dangerous for the protection
of the constitutional rights of individuals outside of
prison. Watering down strict scrutiny in a result-oriented manner in the prison context could subvert its
rigor in other fields where it is applied.101
Unfortunately, this has indeed been a consequence of
the manner in which the Ginsburg opinion selectively
incorporated the legislative record.
The lower courts’ ineffective, inconsistent use of
RLUIPA’s strict scrutiny standard can be seen, for example, in its disparate treatment of grooming issues.
Grooming issues, such as the permissibility of facial hair,
are of great importance to many Muslim prisoners and are
frequently litigated in the courts. The recent split between
the Ninth and Sixth Circuit Courts of Appeals over RLUIPA grooming standards shows the difficulty that the courts
are having with this issue.
In two recent cases, the Sixth and Ninth Circuits reached
opposite conclusions in cases in which prisoners refused to
cut their hair for religious reasons. In Warsoldier v.
Woodford, the Ninth Circuit rejected the California prison
system’s argument that its hair grooming policy was the
least restrictive means of promoting security, enabling
quick identification of inmates, preventing inmates from
hiding contraband in their hair, and preserving health and
safety.102 The Ninth Circuit emphasized that the policy is
too sweeping; that it applies to all male inmates but to no
female inmates regardless of security threat; that it does not
distinguish between maximum and minimum security
levels; and that it provides not accommodation for religious
belief.103
The Sixth Circuit, by contrast, affirmed the Ohio prison
system’s similar policy in Hoevenaar v. Lazaroff, giving
‘‘due deference to the judgment of prison officials, given

100
Senate Report 103–111 at 10 (1993); 146 Cong. Rec. S7775
(daily ed. July 27, 2000).
101
Madison v. Riter, 240 F. Supp. 2d 566, 578 n.10 (W.D. Va. 2003),
overruled on other grounds 355 F.3d 310 (4th Cir. 2003).
102
418 F.3d 989, 997 (9th Cir. 2005).
103
Id. at 997 (9th Cir. 2005) at 102.

Race Soc Probl (2009) 1:36–44

their expertise and the significant security concerns implicated by prison regulations.’’104 Indeed, the Sixth Circuit
reversed a lower court decision striking down Ohio’s policy, admonishing that the court had ‘‘improperly
substituted its judgment for that of prison officials.’’105 The
court relied heavily on ‘‘expert testimony’’ provided by
Ohio prison officials, who provided conclusory justifications for their refusal to provide religious accommodations
(see footnote 103). Disturbingly, the Sixth Circuit was most
impressed with the warden’s testimony that ‘‘individualized exemptions are problematic because they cause
resentment among the other inmates, a copycat effect, and
problems with enforcement of the regulation due to staff
members’ difficulties in determining who is exempted and
who is not.’’106 All of these arguments prove too much, in
the sense that they can be applied to any request for any
religious context in any context, whether prison-related or
not. Moreover, the ‘‘resentment’’ argument, also known as
the ‘‘heckler’s veto’’ is the classic example of an argument,
which cannot be considered ‘‘compelling,’’ because it is
inconsistent with all forms of accommodation and with
virtually any system of individual rights.
In short, the Cutter court’s strong reliance on legislative
‘‘deference’’ comments has undercut RLUIPA’s facial
insistence upon strict scrutiny, leading to weak, inconsistent opinions by the lower courts. Unfortunately, as long as
the courts continue to apply diluted versions of the compelling interest standard, they will countenance improper,
discriminatory conduct by prison officials. The degree of
deference provided by some lower courts, with apparent
congressional and Supreme Court approval, is inconsistent
not only with the concept of strict scrutiny, but also with
everything that we know about the conduct of prison
officials in matters of religious free exercise.
Conclusion: The Need for Change
Eight years after Congress unanimously passed RLUIPA,
incarcerated persons still face the same challenge that
motivated the bill’s sponsor’s to initiate the legislation. As
Senators Orin Hatch and Ted Kennedy had jointly
announced at the time: ‘‘[i]nstitutional residents’ rights to
practice their faith is at the mercy of those running the
institutions.’’107
The condition of Muslim prisoners is important, not only
for obvious humanitarian reasons, but also because

43

prisoners now represent more than one percent of the
American population.108 Moreover, when freedoms are
denied incarcerated persons, they may soon be denied to
others as well.
The best way to effectively prevent anti-Muslim discrimination in American prisons is for courts to apply
RLUIPA’s liability standard as written, rather than by
giving undue deference to prison officials in a manner that
is inconsistent with the rigors of judicial strict scrutiny; for
the Justice Department to aggressively enforce these cases;
and for Congress to establish a process for administrative
complaint resolution. Currently, processes exist for prisoners to raise complaints within their own prison systems
and, if necessary, to seek Justice Department intervention.
Given the rarity of Justice Department involvement, and
the weakness of internal administrative reviews, Congress
should provide for federal administrative review of prisoner complaints at federally assisted state and private
prisons, just as such review is provided in the educational,
health, employment, and housing sectors.

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