March 1, 2016

Justice Alito dissents from the Supreme Court's declining to take a case in which it seems that North Carolina, in violation of the Free Exercise Clause, discriminated against a Jewish prisoner.

Eugene Volokh has some details:
Ben-Levi is serving a life sentence for a 1980 rape; at some point, he changed his name to Israel Ben-Levi, and either converted to Judaism or rediscovered Judaism; he now wants to engage in group Torah study with two other inmates. North Carolina prisons generally allow group religious study; but for Jews they require either the presence of a rabbi or a minyan — 10 adult Jews. The minyan requirement stems from the prison system’s understanding of Jewish law.
Alito writes; 
In essence, [the warden]’s argument — which was accepted by the courts below — is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion....

The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents....
The Court's refusal to take the case doesn't mean the court below got it right. And, in fact, it looks obviously wrong — wrong on an exceedingly important proposition of freedom of religion. A person may be shamming about what he really believes, but whatever he sincerely believes, that's his religion. It doesn't matter that it may fail to align with what authorities operating under the same religion name happen to say or what the government, consulting those authorities, think they've got figured out. It's what's in that one person's head, here in the United States of America.

36 comments:

Skyler said...

People in cages shouldn't have the right to assemble to worship. They should have the right to pray as they wish within their own cage.

Brando said...

The Court can decide whether to take a case or not, but by allowing this to stand it can continue to serve as precedent in that Circuit. And the concept of "he misunderstood his own religious beliefs" is so inane one wonders how it got that far.

Curious George said...

This sentence can't be right:

"A person may be shamming about what he really believes, but whatever he sincerely believes, that's his religion."

Bob Ellison said...

Curious George, that sentence is correct.

David Begley said...

Three Jewish prisoners in North Carolina?

Pookie Number 2 said...

There's no requirement to have either 10 men or a rabbi for Torah study sessions. Several prayer sections are omitted in the absence of 10 men, but there is no such requirement for study.

This doesn't address the constitutional issues, of course.

Curious George said...

"Bob Ellison said...
Curious George, that sentence is correct."

Can't be. Unless you have a certified mind reader.

Ann Althouse said...

Non-Jews could meet in small groups for religious study, but Jews were told they couldn't have groups smaller than 10. That's plain discrimination against Jews.

The govt seems to be trying to say, but if you were really Jewish, you wouldn't want to meet unless there were 10 of you, therefore we pronounce your request not genuinely religious. That is, we're not discriminating against you, we treat all religions the same, and what you have there is not religion because real Jews don't ask for what you've requested. The govt is deciding the terms of the religion.

Rae said...

What an odd rule. It seems like small group study would be less of a security problem than than 10+.

Brando said...

"Three Jewish prisoners in North Carolina?"

I'm wondering if the lower court ruled that no true Jewish boy would find himself in a maximum security prison--he would do this to his mother? After all she sacrificed for him?

Ann Althouse said...

The key case is Thomas v. Review Board (where the problem comes up in the context of whether a person gets unemployment insurance and the question is whether he quit his job because of religious purposes when he objected to working on tank turrets):

"The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a reljgious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Not surprisingly, the record before the referee and the Review Board was not made with an eye to the microscopic examination often exercised in appellate Judicial review. However, judicial review is confined to the facts as found and conclusions drawn. On this record, it is clear that Thomas terminated his employment for religious reasons."

Ann Althouse said...

"What an odd rule. It seems like small group study would be less of a security problem than than 10+."

Yeah, I mean what if there were 10+ Jews in this prison and they wanted to meet and the prison let them meet? Then, all the other groups want to be able to meet in a group of 10+ and say they're discriminated against.

Adina said...

There seems to be confusion on the part of prison authorities over when a minyan is required.
It is not required for Torah study. It is recommend that when engaged in study there should be two people so that each challenges the other.
A group praying that is less than a minyan cannot recite certain prayers. The only values I am aware of to praying in a group are to say Amen to a blessing and learn how to pray with a group.

gspencer said...

Alito wrote, "The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents...."

But that hasn't prevented Imans Obama, Kerry, Ashton Carter, et alia, from telling the Islamic State that it isn't Islamic.

PB said...

If your religion is what you want it to be, then it sets up endless conflicts in a penal institution, and indeed, in many other settings, too. When you're imprisoned, you've had most of your rights taken away, among them the first amendment. The problem isn't that the government is correct in determining what the inmates can and can't do, but that it hasn't been consistent in doing so.

Birkel said...

Not one person, Althouse. One person would not need a meeting.

Free Exercise, like other civil rights, can be reasonably restricted in prison.

traditionalguy said...
This comment has been removed by the author.
traditionalguy said...

The old "secular folks know better what a Jew should be and what a Christian should be than the Jews and Christians do" problem.Those are defined roles and we want to see them continuously played out for our world view comfort zone. No radical believers shall be permitted.

Sounds like the Red Chinese Communist Party is setting the Permitted Religion agenda everywhere now. And take down those damn steeples and crosses used to stir up rebellion and encourage Free Speech.

Ann Althouse said...

Maybe the prison would say the Jews still couldn't meet because 10 is too large of a group and the compelling interest in security requires us to say no. So the Jews are discriminated against either way

Bob Boyd said...

Maybe it's not discrimination at all. Maybe it's the opposite.

It could be the prison is having problems with certain inmates who use their religious rights to try to force the prison to allow them to meet in small groups where they can then organize criminal activities or maybe engage in prostitution.
Perhaps the prison doesn't let any inmates meet in groups of two or three. They can't allow an exemption, even if it's a legit request, because then they'd have to allow everyone to do it and pretty soon it would get out of hand.
Just speculating. We don't have to jump to the conclusion that the authorities are bigots, though they might be.

Ignorance is Bliss said...

So do we know the vote total on whether or not to take the case? Would one more principled jurist have changed the outcome?

Bob Ellison said...

Religion is in the mind of the holder.

Gahrie said...

Soooo...if my religion is opposed to incarcerating criminals, I can never be sent to prison?

robother said...

Of course the Progressives on the SCOTUS would take this view.

The Progressive solution is obvious: Jews are not incarcerated in proportion to their demographic percentage, which is prima facie evidence of Jewish Privilege. The North Carolina justice system needs to placed under federal court supervision to ensure ethnic and racial balance in the prisons.

Bob Ellison said...

Gahrie, no. Render unto Caesar.

No court should presume to judge the religion of the people it judges.

If the prison says lunch is at 12:00pm and bedtime is at 7:00pm, then so be it. But within the prison's rules, religious belief is particular to the individuals. It is a violation of America's freedom of conscience and liberty (and of the first amendment) for the court to judge on whether a particular ritual, within the bounds of the prison's rules, is religious enough to pass muster.

Bob Boyd said...

Gahrie said...
"Soooo...if my religion is opposed to incarcerating criminals, I can never be sent to prison?"

The bad news is you can still be imprisoned.

The good news is you shouldn't have a problem finding 10+ fellow believers for your group studies.

Ann Althouse said...

"But that hasn't prevented Imans Obama, Kerry, Ashton Carter, et alia, from telling the Islamic State that it isn't Islamic."

Right. And I've made this point before. They're doing religion-related propaganda, something govt usually shouldn't do.

MikeR said...

Amazing that they (a) chose to decide a religious point for someone else, and (b) got that point so ludicrously wrong. Point (a) might need to go to the Supreme Court. Point (b) - that's idiotic. There is no recourse if a trial court says that Our decision is based on 2+2=5? Shouldn't the next higher court reverse in five minutes? Duh.

Ignorance is Bliss said...

MikeR said...

Our decision is based on 2+2=5? Shouldn't the next higher court reverse in five minutes?

Yep. Two minutes to read the lower court ruling, and two to write their response.

Fred Drinkwater said...

Hah. And to think I got laughed out of the room the last time I discussed this with lawyers, when I claimed that the various US governments were, in actual practice, deciding what is and isn't a religion in the US. (I had suggested that a reasonable approach to first-amendment-compliant legislation would be to ban the use of the terms "religion", "church", "temple", etc. in law. Having those words in law means the govs are defining them, for legal purposes.)

n.n said...

Perhaps if it were undertaken in the dark fringes of a penumbra, then the rights of the individual and government would coalesce.

Vittorio Jano IV said...

2 + 2 = 5 for very large values of two.

Jonathan Graehl said...

I agree with Ann. However: suppose prisons made no provision for anyone's religion. You can read your religious book. You can have halaal+kosher food. That's it. No study groups. No services. It is interesting how much discretionary power prison officials have (but probably they need *some* of that power to control inmates). Prison could be intolerable under the wrong guards, and is an ugly thought regardless.

Complete the sentence: exercising my religion requires ...

Ignorance is Bliss said...

Jonathan Graehl said...

However: suppose prisons made no provision for anyone's religion.

That would be constitutional under Smith. However, as a general policy it would violate the RFRA, which requires reasonable accommodation of people's religious practices. Certainly a prison has plenty of cases where they have valid security concerns and could prohibit many things. For example, they could prohibit small group gatherings as a security concern. However, if they allow people working on their GEDs to study together, then they have no justification for prohibiting religious study groups or worship services under the same rules. If they allow people to associate in the cafeteria or the yard, they cannot prevent them from using that time to practice their religion.

Bricap said...

Is it possible that the Court didn't hear the case because the docket might have been too crowded to give it time? I just wonder how often they don't take cases because they can't take every single case that might be worth hearing.

cubanbob said...

One despairs that our courts and the prison system are so incompetent that they cannot distinguish that something as simple as a religious quorum requirement for prayer services isn't the same thing as a request to engage in bible studies with some like minded co-religionists. Either way one would think the prison system would encourage religious conduct and study if for no other reason than to keep order in the prison.