Are religious prisoners specially entitled to conjugal visits?

[rug]

By Eugene Volokh
April 30 at 7:17 am

The Free Exercise Clause generally doesn’t mandate religious exemptions from generally applicable laws, but some state constitutions, some state statutes and some federal statutes do. One such statute is the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to prisons that take federal funds. Under RLUIPA, if a generally applicable rule “substantially burdens” an inmate’s religious practice, the prison must give the inmate an exemption, unless denying the exemption is the “least restrictive means of furthering that compelling government interest.” In practice, few exemptions end up being granted under RLUIPA, because the prison can often rely on the prison’s interest in security, and courts tend to defer in considerable measure to prison judgments on such security questions. But in theory, such exemptions are potentially available.

Yesterday’s decision in Thomas v. Corbett (Pa. Commw. Ct. Apr. 29, 2014) is the fairly rare case in which a court allows a prisoner’s RLUIPA claim to go forward. The opinion suggests that the state just didn’t really work hard at defending its position, perhaps because it thought victory was assured; the state will have more chances to win as the case goes forward. But if the state ultimately loses at the end, I think that would be very much the wrong result.

The claim in Thomas was that a prison’s no-conjugal-visits policy substantially burdened prisoner Gregory Thomas’s religious practice:

Thomas avers that his religion requires him to marry and, in fact, to have multiple wives. Thomas avers that DOC’s policy concerning visits from spouses precludes him from enjoying conjugal visits with his wives. Thomas avers that this policy has a detrimental effect on the status of his marriages, because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/30/are-religious-prisoners-specially-entitled-to-conjugal-visits/

The decision can be reached from the link.

[Jim__]

1. If they are, and given that this is a claim based on the Islamic religion ...

... there may be a huge upsurge in the number of "Islamic" prisoners.

[cbayer]

2. Lol. His wives (that's right, wives) are going to divorce him if

he doesn't have sex with them.

By the way, not only is Mr. Thomas a polygamist, he was convicted of killing one of his wives who was trying to divorce him. He also plead guilty killing his mother, who was going to rat him out.

And he is also claiming that the current law discriminates against heterosexuals because homosexuals can have sex in prison.

He's a real jewel and I bet those women want to divorce him for reasons other than the fact they can't have sex with him.

[okasha]

3. Seems to me that the deciding factor

should be whether the guy should be allowed to continue to commit bigamy in prison.

[nil desperandum]

4. Murderers

Life in prison without chance of parole, sentenced in 1990. He's been locked up since he was 30 he is now 55. Hard to believe that he suddenly requires a conjugal visit to maintain his religious beliefs.

It won't take much effort on the state's part to win this case. If they hadn't been so lazy about the initial prep for Mr. Thomas would be back in his cage on permanent lock down where he belongs. Murderers deserve very little consideration regarding their personal moral choices as it's pretty clear they have a fundamental lack of morals.