This was initially a comment to Avrohom’s post, Prisoner’s “Free Exercise Clause” claim fails despite New York City’s failure to provide her with a rabbi at 3:30 am. It grew into its own post.
My initial take is that the court is conflating two issues — 1) whether a prisoner in general is entitled under the free exercise clause to consult with religious clergy, and 2) whether a prisoner has a specific right to object and/or consult with clergy when being directed to do something the prisoner believes is religiously prohibited.
The first is a general question of affirmative religious rights. The second is whether or under what specific circumstances someone’s free exercise rights may be impinged, and whether the prisoner then has the right to consult on an urgent and time-sensitive basis.
The court’s failure to make the distinction is evident in this passage:
Even if plaintiff had advanced an independent claim of municipal liability based on defendant’s failure to provide a rabbi, the claim would have failed on the merits. Defendant does not dispute that plaintiff had the right to consult with a religious advisor while incarcerated (see Def.’s Br. 2), and the Court agrees that such consultation is an important aspect of religious expression. See Griffin v. Coughlin, 743 F. Supp. 1006, 1027 (N.D.N.Y. 1990). Plaintiff cites no case, however, for the proposition that the Free Exercise Clause requires defendant to provide access to a religious advisor within a certain period of time or to delay prison administration while a religious advisor is obtained. The Court concludes that defendant’s alleged policy of providing religious advisors during business hours and in emergencies is “reasonably related to legitimate penological interests” under the standard articulated in Turner v. Safley, 482 U.S. 78, 89 (1987). The City’s failure to provide plaintiff with a rabbi at 3:30 a.m., or to suspend the intake process until a rabbi was available, was not a violation of her Free Exercise rights.
The Griffin case, which can be read here, concerned prisoners’ rights to have private meetings with clergy. Once you posit that prisoners do have the right, the question then becomes what should be considered reasonable under the circumstances. Likewise, Turner dealt with general prison rules on marriage and correspondence – also no apparent question of immediacy, but of general religious rights.
Following that logic, the court should have then addressed whether it was reasonable under the circumstances to allow the prisoner to speak to a rabbi. It should be relevant what she was arrested for and whether she was dangerous or uncooperative. It should be relevant whether she could have been held without being photographed for several hours. It may be reasonable under most circumstances to allow religious consultations only during business hours or during emergencies, but as a general matter, at 3:00 a.m. the corrections officers are not demanding that a prisoner do something he or she believes violates a religious prohibition. Pointing at precedent that approved of general rules on non-urgent issues does not address the question here.
Something tells me that the court sees head covering as no big deal anyway. If so, that’s not an appropriate call for the court to make. Would they say the same if a prisoner hadn’t eaten in three days and wanted to consult as to whether it was permissable to eat food that was not kosher?
