The law is always evolving. If you have access to a prison law library, it is a good idea to confirm that the cases and statutes cited below are still good law. The purpose of this document is to provide general information about the law – it does not constitute legal advice.
Other prisoners' rights materials:
- Restrictions on Visitation
- Privileged and Non-Privileged Mail
- The Prison Litigation Reform Act (PLRA)
- Pregnancy-Related Health Care
- Prisoners with Disabilities
- Environmental Hazards and Toxic Materials
- Disciplinary Sanctions and Punishment
- Assault and Excessive Force
- Publications Sent By Mail
1.The Constitution provides protection for the exercise of sincerely held religious beliefs.
2. What qualifies as a religion or religious belief?
Courts often disagree about what qualifies as a religion or a religious belief. So-called "mainstream" belief systems, such as Christianity, Islam and Judaism, are universally understood to be religions. Less well-known or nontraditional faiths, however, have had less success being recognized as religions. While Rastafari, Native American religions, and various Eastern religions have generally been protected, belief systems such as the Church of the New Song, Satanism, the Aryan Nations, and the Five Percenters have often not received protection. The Supreme Court has never defined the term "religion." However, in deciding whether something is a religion, lower courts have asked whether the belief system addresses "fundamental and ultimate questions," is "comprehensive in nature," and presents "certain formal and external signs." See e.g., Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981); see also Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir. 1986). If you want a nontraditional belief system to be recognized as a religion, it may help if you can show how your beliefs are similar to other, better-known religions: Does your religion have many members? Any leaders? A holy book? Other artifacts or symbols? Does it believe in a god or gods? Does it believe that life has a purpose? Does it have a story about the origin of people? But see Kaufman v. McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005) (holding that, in the context of the First Amendment, atheism can be a religion; religion need not be based on a mainstream faith or a belief in a Supreme Being, but instead “when a person sincerely holds beliefs dealing with issues of 'ultimate concern' that for her occupy a 'place parallel to that filled by . . . God in traditionally religious persons,' those beliefs represent her religion") (quoting in part Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688 n.5 (7th Cir. 1994)).
3. What qualifies as a "sincerely held belief"?
In addition to proving that something is a religion, you must also convince prison administrators or a court that your beliefs are sincerely held. In other words, you must really believe it. In deciding whether a belief is sincere, courts sometimes look to how long a person has believed something and how consistently he or she has followed those beliefs. See Sourbeer v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986) (upholding a finding of insincerity where prisoner only went to religious service 5 times in one year and did not designate a spiritual adviser to visit him); Vaughn v. Garrison, 534 F. Supp. 90, 92 (E.D.N.C. 1981) (upholding a prison’s requirement that an inmate request a pork free diet before qualifying him as a member of the Islamic faith and allowing him to order a Muslim prayer rug). Just because you have not believed something your entire life, or because you have violated your beliefs in the past, does not automatically mean that a court will find that you are insincere. See Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988) (finding “the fact that a person does not adhere steadfastly to every tenet of his faith does not mark him as insincere”); Weir v. Nix, 890 F. Supp. 769, 775-76 (S.D. Iowa 1995) (finding periodic receipt of literature contrary to prisoner’s faith does not necessarily require a finding of insincerity). However, if you recently converted or if you have repeatedly acted in a manner inconsistent with your beliefs, you will probably have a hard time convincing a court that you are sincere.
4.The Constitution permits certain restrictions on the exercise of religion.
5.Protection under RFRA and RLUIPA: Expanded Statutory Protections for Religious Activities
6.Religious foods in prison
Notwithstanding the Supreme Court’s decision in Estate of Shabazz, courts have generally protected prisoners from interference with their ability to attend religious services or engage in prayer. Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir. 2001) (upholding injunction against disciplining Muslim prisoners for missing work to attend Friday services); Omar v. Casterline, 288 F. Supp. 2d 775, 781 (W.D. La. 2003) (refusal to tell Muslim prisoner the date or time of day to allow him to pray and fast states First Amendment claim); Youngbear v. Thalacker, 174 F. Supp. 2d 902, 912-15 (N.D. Iowa 2001) (one year delay in providing sweat lodge for Native American religious activities violates First Amendment). However, prison facilities may not be required to provide religious services for every religion within the prison. Smith v. Kyler, 295 Fed.Appx. 479, 481-83 (3d Cir. 2008) (First Amendment and RLUIPA not violated by prison policy that only provided a chaplain to lead services in the largest faith groups and prohibited group worship in the absence of an approved, volunteer faith group leader); Murphy v. Missouri Dept. of Correction, 372 F.3d 979, 983-84 (8th Cir. 2004) (safety and security interests justified denial of group worship rights to religion that promoted racial segregation).
Courts have also found that restrictions requiring prisoners to violate the Sabbath or other religious duties violate the First Amendment. McEachin v. McGuinnis, 357 F.3d 197, 204-05 (2d Cir. 2004) (intentionally giving Muslim prisoner an order during prayer may violate First Amendment); Love v. Reed, 216 F.3d 682 (8th Cir. 2000) (failure to provide inmate with food from the prison’s kitchen on Saturday for his consumption on Sunday violates the Establishment Clause where the inmate’s sincerely held religious belief prevented him from leaving his cell or working on the Sabbath, or eating food prepared by others on that day); Hayes v. Long, 72 F.3d 70 (8th Cir. 1995) (requiring Muslim prisoner to handle pork violated First Amendment); Murphy v. Carroll, 202 F. Supp. 2d 421, 423-25 (D. Md. 2002) (prison officials’ designation of Saturday as cell-cleaning day violated Free Exercise rights of Orthodox Jewish prisoner).
Courts have often concluded that prison officials may generally ban religious objects if they can make a plausible claim that the objects could pose security problems. See McFaul v. Valenzuela, 684 F.3d 564, 575-77 (5th Cir. 2012) (neo-Pagan medallions); Hammons v. Saffle, 348 F.3d 1250 (10th Cir. 2003) (Muslim prayer oils); Spies v. Voinovich, 173 F.3d 398, 406 (6th Cir. 1999) (Buddhist religious materials such as incense and a wooden sculpture of a fish); Mark v. Nix, 983 F.2d 138, 139 (8th Cir. 1993) (rosary with plastic crucifix); compare Kay v. Bemis, 500 F.3d 1214, 1221 (10th Cir. 2007) (tarot cards). However, prison officials must present evidence that such restrictions responded to valid security concerns. Boles v. Neet, 486 F.3d 1177, 1182-83 (10th Cir. 2007) (warden’s refusal to allow prisoner to wear religious garments required by his Orthodox Jewish religion violated Free Exercise rights where no penological interest asserted to justify refusal). Also, prison officials may not ban some religious objects and not others without any justification. See Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir. 1999) (Free Exercise Clause violated where prison regulation banned the wearing of Protestant crosses but allowed Catholic rosaries without any reasonable justification for distinction). Courts have also concluded that prison officials are not required to provide religious objects as long as prisoners are free to purchase or obtain the objects themselves. See Frank v. Terrell, 858 F.2d 1090, 1091 (5thCir. 1988).
Courts have concluded that, although officials may limit the amount of reading material that a prisoner keeps in his or her cell, officials may not bar religious literature when other literature is permitted and that prisoners generally have a right to read the primary text of their faith tradition. See e.g., Sutton v. Rasheed, 323 F.3d 236, 250-58 (3d Cir. 2003) (denying a prisoner’s access to Nation of Islam materials solely on the basis that they were nonreligious materials, when other prisoners allowed a Bible or Qur’an, violates the First Amendment); Jesus Christ Prison Ministry v. California Dep’t of Corrections, 456 F. Supp. 2d 1188, 1201-02 (E.D. Cal. 2006) (policy barring prisoners from receiving religious books from organizations not on approved vendor list is unconstitutional); but see Borzych v. Frank, 439 F.3d 388, 390-92 (7th Cir. 2006) (ban on books inmate alleges necessary for his Odinist religion did not violate the First Amendment or RLUIPA where the prison system contends that they are non-religious books intended to promote white supremacist violence).