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Published online by Cambridge University Press: 31 July 2008
The penitentiary in the United States of America originated as a religious institution. Its roots lie in the belief that inmates could reform if they were given an opportunity to engage in reflection, prayer, Bible-reading and work, thus establishing a new personal foundation for functioning as productive members of the larger society. Not surprisingly, given American's predilection for maintaining a secular civil society, this original foundation for the prison eventually fell from favour, and American penological theories became more sociological or psychological in nature. The fact remains, however, that society in the United States is broadly religious, and prisons continue to address the religious beliefs of inmates and how to accommodate those beliefs in a penological setting. This comment provides a case study on this topic, based on littigation concerning the provision of kosher food to Orthodox inmates in the prisons in Colorado.
1 Beerheide v Zavaras 997 F Supp 1405 (D Colo, 1998).Google Scholar
2 Although Mr Beerheide's father was Jewish, his mother was not, and he had not been raised as a Jew.Google Scholar
3 Mr Beerheide's conversion in prison did not include a ritual bath, ritual circumcision or the approval of a Bet Din or rabbinical court, as the facilities for these formalities were not available. However, the visiting rabbi did conduct a prayer service, acknowledging that Mr Beerheide had become a Jew in a spiritual sense.Google Scholar
4 42 United States Code § 2000bb-1.Google Scholar
5 See e.g, Employment Div v Smith 494 US 872, 110 S Ct 1595 (1990). These decisions were under the Free Exercise Clause of the First Amendment of the United States Constitution, which provides ‘Congress shall make no law… prohibiting the free exercise [of religion]. This constitutional restriction also applies, through other constitutional provisions, to laws passed by the States. Cantwell v Conn. 310 US 296, 60 S Ct 900 (1940).Google Scholar
6 O'Lone v Estate of Shabazz 482 US 342, 107 S Ct 2400 (1987).Google Scholar
7 In the United States' federal courts, magistrate judges are permitted to perform certain duties delegated to them by district court judges; district judges are ordinarily responsible for more final determinations in these cases.Google Scholar
8 City of Boerne v Flores 521 US 507, 117 S Ct 2157 (1997).Google Scholar
9 The legal basis for this decision was that Congress had exceeded its power when it attempted to regulate state laws limiting freedom of religion, when the state law was a part of an overall statutory scheme that did not treat religious conduct differently from non-religious conduct.Google Scholar
10 In fact, after the kosher diet became available, a rumour did spread that the fresh fruit and vegetables prevented inmates from contracting hepatitis. This led to an increase in the number of inmates requesting kosher diets.Google Scholar
11 Beerheide v Suthers 286 F 3d 1179 (10th Cir, 2002).Google Scholar
12 Cf Ashelman v Wawrzaszek 111 F 3d 674 (9th Cir, 1997); Kahane v Carlson 527 F 2d 492 (2d Cir, 1975) (requiring kosher food) with Cooper v Lanham, No 97–7183 [1998 WL 23091] (4th Cir, 1988); Holterman v Helling No 94–3113 [1995 WL 702300] (8th Cir, 1995).Google Scholar
13 See 42 USC §2000cc-1.Google Scholar
14 See Cutter v Wilkinson 349 F 3d 257 (6th Cir, 2003) Cert. Granted October 12. 2004 [2004 WL 843727].Google Scholar
15 An even more relaxed standard would require only proof of a rational relationship between a hypothetical reason that might lie behind the decision whether to accommodate religious practice and the decision, for example, not to offer the accommodation.Google Scholar
16 For a more thorough development of this argument, see Beerheide v Suthers 286 F 3d at 1192 (Owens J concurring).Google Scholar
17 Thomas v Review Board of Indiana Employment Security Division 450 US 707, 714, 101 S Ct 1425 (1981) (‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection’).Google Scholar
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