By Emilio Gironda

Before 1964 Courts considered prisoners to be charges of the state with minimal rights even when their constitutional violations were at issue. Since then the Supreme Court and Congress have given, and often taken away, prisoners’ basic constitutional protections. For our purposes, these protections filter down to the issue of vegan meals for vegan prisoners with broader implications as to what constitutes religion and also what it means to be vegan.

I will start by tracing the evolution of prisoners’ rights to the free exercise of religion, then review what constitutes “religion” and finally try and discover how veganism fits into this schema. Should vegans in prison receive the same constitutional protections that members of religions are given? In the larger sense, at least as far as the right to vegan meals in prison is concerned, it comes down to whether or not veganism needs to be a formal religion to be protected under the Constitution. From there the inquiry leads to a very fundamental and almost existential question—what is a religion?

Being vegan myself, I do, of course, have my own ideas on religion and veganism. For me veganism is not a religion, nor does it need to be one to qualify for constitutional protection. It does not involve any formal rituals, it does not involve any worship services, it does not have a deity, it does not have a priesthood, it does not have any idols, no sacred texts, no holidays, no Mecca, no Jerusalem, no St Peter’s, no Buddha, no Jesus, no Moses…you get the idea. Here is a brief summary of prisoners’ rights to practice religion and how they impact vegan prisoners’ rights to vegan meals.

The Right to Practice Religion

My investigation starts by tracing the earliest articulations of prisoners’ rights to basic constitutional protections and the subsequent expansion of those rights insofar as they impact the free exercise of religion.

• In 1964 the Supreme Court in Cooper v. Pate (1) held that the Bill of Rights applies to prisoners, finding that they have the right to possess religious texts.
• Ten years later, in 1974, the Supreme Court in Wolff v. McDonnell (2) and Procunier v. Martinez (3), established that inmates have a First Amendment right of free speech.
• In 1987 the Supreme Court, in Turner v. Safley (4), held that restrictions can be placed on inmates’ First Amendment rights if they have a “rational basis” —but the Court stressed that deference should be given to prison policies.
• Also in 1987 in O’Lone v. Estate of Shabazz (5) the Supreme Court held that restrictions on inmates participating in religious services were constitutional when they conflict with prison safety policies.
• In 1989 Thornburgh v. Abbott (6) the Supreme Court somewhat backtracked on prisoners’ rights holding that restrictions on publications and letters did not violate their First Amendment right to free speech.
• In 1990 the Supreme Court held in Employment Division v. Smith (7) that the First Amendment does not require religious exemptions from a “neutral law of general applicability,” further backtracking on earlier decisions.
• In 1993 Congress, perhaps in reaction to the watering down of prisoners’ rights by the courts, passed the Religious Freedom Restoration Act (RFRA) (8) which mandated strict scrutiny for all government actions burdening religious exercise.
• In 1997 in the Boerne v. Flores (9) case the Supreme Court held that the RFRA was unconstitutional as an improper exercise of Congress’s enforcement power.
• After Boerne v. Flores, the states began to pass their own versions of RFRA or to reinterpret their state guarantees of religious freedom to require strict scrutiny.

The Religious Land Use and Institutionalized Persons Act (RLUIPA)(10)

In 2000 Congress passed the RLUIPA which clearly states that prisons cannot impose substantial burdens on the religious exercise of prisoners. It defines religious exercise as any exercise of religion, whether or not compelled by, or central to, a system of religious beliefs. These two cases based on the RLUIPA, articulate a three pronged analysis:

• In a decision from 2014, Haight v. Thompson (11), the Court established that a prison can restrict the religious exercise of prisoners if the restriction furthers a compelling governmental interest and does so in the least restrictive way.
• In 2018 New Doe Child #1 v. Congress of the United States (12) the Court decided that when considering a plaintiff’s allegation concerning a protected religious exercise, the court must ensure that the claim is based on a sincere religious belief.

The Equal Employment Opportunity Commission (EEOC) (13)

With restrictions imposed on RLUIPA by the Courts, we can also come at the right to practice religion from the perspective of the Equal Employment Opportunity Commission, which protects against employment discrimination in the workplace, including religious discrimination. As part of that function, the Commission has had to address and determine what constitutes a religious belief to be protected. The basic statute states that religion or religious practice includes #1 beliefs that are not part of a formal church or sect, #2 non-theistic, moral or ethical beliefs as to what is right and wrong, and #3 beliefs that are “religious” in the person’s own scheme of things. This sounds promising.

BUT it goes on to say that social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs to be protected. It further states that whether or not a practice is religious is a situational, case-by-case inquiry. The same practice might in one case be subject to reasonable accommodation because an employee engages in the practice for religious reasons, and in another case might not be subject to reasonable accommodation because the practice is engaged in for secular reasons. In law school, we were taught that the Law gives with one hand and takes away with the other. This is a perfect example.

Other Cases on Religious Belief

• In 1944 the Supreme Court in US v. Ballard (14) held that whether a religious belief is true or false is irrelevant, as long as the belief is sincerely held.
• In the 1965 case US v. Seeger (15) the Supreme Court held that religion includes any “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.”
• In 1970 the Supreme Court in Welsh v. US (16) held that if “an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content…those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”

Do Vegans, Unconnected to Any Religion, Get the Same Constitutional Protections as Members of Religions?

It was not until 1964 that the Supreme Court first held that the Bill of Rights applies to prisoners. Almost 100 years after the Civil War, and, for someone born in 1957, a date not so distant. It was almost 35 years later that Congress codified the rights of prisoners to the free exercise of their religion. Push back was almost immediate, but the basic protections are still in place. Prisoners’ rights to dietary restrictions in conformity with their religious precepts have been granted, again with push back and restrictions. The fate of vegan meals being served prisoners outside of religious dictates still has not been specifically addressed by the Supreme Court.

As I see it, the strongest argument on the side of vegans is that veganism, though not a “religion,” qualifies for the protections given religions as an ethical, moral, sincere, and meaningful belief that occupies a place parallel to that filled by the orthodox belief in God. Any decision that gives veganism the same standing and protection as, say Jainism, (which by the way is non-theistic) will not only be subject to push back, it will be subject to all of the restrictions already imposed on religious practice. It will not be a panacea. As vegans, and vegetarians, we know about push back. Vegans in prison, if granted some sort of protected status, will still have to deal not just with push-back, but with surfing the sea of bureaucracy. But, as Taoist’s say, a journey of 1,000 miles starts with one step. Step away!

References

1 – Cooper v. Pate, 378 U.S. 546 (1964)

2 – Wolff v. McDonnell, 418 U.S. 539 (1974)

3 – Procunier v. Martinez, 416 US 396 (1974)

4 – Turner v. Safley, 482 U.S. 78 (1987)

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

6 – Thornburgh v. Abbott, 490 U.S. 401 (1989)

7 – Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.

872 (1990)

8- Religious Freedom Restoration Act https://www.law.cornell.edu/uscode/text/42/chapter-21B

9- City of Boerne v. Flores, 521 U.S. 507 (1997)

10 – The Religious Land Use and Institutionalized Persons Act https://www.justice.gov/crt/title-42-public-health-and-welfare

11 – Haight v. Thompson, 763 F.3d 554 (2014)

12 – New Doe Child #1 v. United States, No. 16-4440 (8th Cir. 2018)

13 – The Equal Employment Opportunity Commission https://www.eeoc.gov/

14- United States v. Ballard, 322 U.S. 78 (1944)

15 – United States v. Seeger, 380 U.S. 163 (1965)

16 – Welsh v. United States, 398 U.S. 333 (1970)

For other information, see https://www.vrg.org/journal/vj2001mar/2001_mar_prison.php

Emilio Gironda grew up in the beautiful Mid-Hudson Valley of New York where he practiced law for 35 years. He has come to the vegan table late in his journey of self discovery and evolution. He believes that all living beings deserve our love and compassion and that to live any other way is to fill our lives with dust.

This is not legal advice, for which you should consult your own legal professional.