First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even before the Supreme Court ruled in Employment Division v. Smith that heightened constitutional scrutiny should be limited to certain circumstances, the Court had suggested that a lower level of scrutiny would apply in the context of prisons and the military.1 In Goldman v. Weinberger, the Supreme Court held that the Air Force’s uniform dress regulations, which prohibited most members from wearing headgear indoors, could apply to a yarmulke.2 The Court declined to analyze the free exercise objection under heightened scrutiny, saying instead that the Court’s “review of military regulations . . . is far more deferential than constitutional review of similar laws or regulations designed for civilian society.” 3 Accordingly, the Court deferred to the Air Force’s judgment that “standardized uniforms” were “vital” for discipline and unity, as well as its decision not to accommodate visible religious apparel that would detract from the desired uniformity.4

A year later, in O’Lone v. Estate of Shabazz, the Court adopted a similarly deferential position to uphold prison regulations that inhibited certain prisoners’ religious exercise.5 The prison chose not to allow Muslim prisoners assigned to outside work details to return to the prison to attend religious services.6 While acknowledging that prisoners retain some First Amendment rights, the Court also said that prisoners’ constitutional claims “are judged under a ‘reasonableness’ test” that affords more deference to prison administrators than ordinary standards.7 The Court said that a prison’s ability to accommodate religious activity might be “relevant to the reasonableness inquiry,” but it would be inappropriate to place “the burden on prison officials to disprove the availability of alternatives.” 8 Ultimately, the Court held that the prison regulations were constitutional because they had “a logical connection to legitimate governmental interests” in maintaining institutional order and security.9

Nonetheless, the First Amendment’s guarantees still apply to members of the military and to prisoners, and the Supreme Court has also held that the government would violate the Free Exercise Clause if it discriminated against a Buddhist prisoner, denying him “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners.” 10

Footnotes

1

The Court has also said that a lower level of constitutional scrutiny is appropriate to evaluate free speech claims in similar contexts. See Amdt1.7.8.1 Overview of Government Roles. However, Congress subsequently enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, which prevented the government from substantially burdening an institutionalized person’s religious exercise unless it met a heightened standard, showing that its action was the least restrictive means to further a compelling governmental interest.

2

Goldman v. Weinberger, 475 U.S. 503, 504 (1986).

3

Id. at 506–07.

4

Id. at 508–10. The Court described the regulations as “reasonabl[e] and evenhanded[ ].” Id. at 510.

5

O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987).

6

Id. at 346–47.

7

Id. at 348–49; see also Turner v. Safley, 482 U.S. 78, 89 (1987) ( “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” ).

8

Id. at 350.

9

Id.

10

Cruz v. Beto, 405 U.S. 319, 322 (1972). The case came to the Court on an appeal of a motion to dismiss the prisoner’s complaint. Id. at 320–21. The Court assumed the truth of the allegations for purposes of assessing the motion and vacated the dismissal of his complaint. Id. at 322–23. See also Cooper v. Pate, 378 U.S. 546, 546 (1964) (per curiam) (holding lower courts erred by dismissing the complaint of a prisoner who alleged “that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners” ).