Isaac Avilucea, The Connecticut Law Tribune

October 13, 2014

A Muslim prisoner has taken Arkansas prison officials to the U.S. Supreme Court for refusing to allow him to grow a one-inch beard for religious purposes. In New Mexico, a prisoner sued corrections officials for not allowing him to practice Satanism.

Here in Connecticut, convicted Cheshire home invasion murderer Steven Hayes recently made headlines when he sued the state for access to kosher food because, he claims, he is now an Orthodox Jew.

In these cases, experts say, the legal questions go beyond whether the religious requests are reasonable or even if prisoners such as Hayes are actually legitimate members of the Jewish faith. The question is whether prison officials are violating the Religious Land Use and Institutionalized Persons Act (RLUIPA). Enacted in 2000, the law is usually discussed in Connecticut in connection with zoning disputes involving religious groups seeking to build houses of worship. But another provision gives inmates enhanced protection for their religious beliefs.

For several reasons, legal experts said, prisoners are especially vulnerable to religious belief abuses. Often, they don't have the financial means to hire lawyers to represent them in religious abuse cases. Then there's public sentiment which, in the Hayes case and other instances, tends to lean in favor of prison officials.

But Hope Metcalf, executive director of Yale's Orville H. Schell Jr. Center for International Human Rights, said the legal community must take prisoners' claims seriously, regardless of why they're imprisoned.

"There are some cases that stand out for seeming unsympathetic or even frivolous," Metcalf said in an email to the Law Tribune. "The procedural bars faced by any pro se litigant—and particularly prisoners—are incredibly high, and judges have all kinds of tools to weed out meritless claims."

David McGuire, staff attorney at the American Civil Liberties Union of Connecticut, couldn't speak to the exact number of prisoners in Connecticut who make religious rights claims. But generally speaking, he said those that do so are self-represented. In cases where prisoners make RLUIPA claims, he said decisions hinge on "how deferential judges are to prisons' reasons for limiting religious expression."

In the case before the U.S. Supreme Court, for example, the growing consensus is that Gregory Holt, also known as Abdul Maalik Muhammad, will win. During oral arguments, the justices peppered attorneys representing Arkansas prison officials with questions about why Holt, who says Allah commands him to wear a beard, hasn't been allowed to honor the Muslim practice.

Forty states already allow Muslims to grow beards, and Holt even offered to compromise with prison officials by keeping his beard an inch long. But prison officials claimed his beard hampered officials from identifying prisoners and jeopardized other prisoners' safety at the jail. The justices seemed skeptical, with Justice Samuel Alito questioning why Holt couldn't just comb the beard to alleviate prison officials' concerns about contraband or weapons being smuggled in by the whiskers.

"If there's anything in the beard, such as a tiny revolver, it'll fall out," Alito said.

Hayes' case isn't as clear-cut. He is on death row at Northern Correctional Institute in Somers after being convicted of killing Jennifer Hawke-Petit and her daughters, Hayley and Michaela, in 2007. He says he's losing weight because he refuses to eat prison food that's not kosher. He claims in his lawsuit that prison officials have denied requests since May 2013 for kosher food. He says he has instead been offered "kosher-like food," prepared on the same surfaces and in the same pots and pans as nonkosher food. That food, however, is contaminated, in Hayes' view, because it's mixed with nonkosher food. "Kosher-like is not kosher," Hayes said in the lawsuit.

Some Jewish groups have questioned Hayes' sincerity. They say he isn't truly Jewish because his mother wasn't Jewish (the religion passes from mother to children) nor has he converted with the help of a rabbi. Hayes acknowledges that he is "self-converted."

Rabbi Menachem Katz, the director of prison programs at the Aleph Institute, a Florida-based group that advocates for Jewish prisoners' rights, said his organization isn't involved in, and takes no position on, Hayes' lawsuit. But his experience is that Connecticut is notoriously bad at accommodating kosher food requests. And he doesn't see that changing soon.

"It has a lot of work to do on the kosher food front," Katz said. "It's gonna take a bona fide Jewish inmate to sue them and win. That's the only language they understand. They don't wanna play ball [with us]."

For the nearly 5,000 Jewish prisoners housed in U.S. prisons, Katz said refusal of kosher meals is the most commonly cited complaint. Other gripes deal with lack of access to prison chapels and religious services. Most prisons require that a handful of prisoners be from a denomination before services can be scheduled.

Self-converted Jewish prisoners such as Hayes must pass a sort of sincerity test used to root out impostors, which could include an interview with a prison chaplain, Katz said. "If they say they're [originally] from the Catholic faith and they need a kosher diet, they're gonna be laughed off the stage," he said. "The government can't decide, 'You are Jewish; you are not Jewish.' But the [Department of Correction] can decide when someone is playing them."

Most experts agree that Hayes faces an uphill battle in convincing judges he is a true follower of the Jewish faith. McGuire said each such claim is "incredibly fact-specific," further complicated because prisoners usually aren't well versed in law. "The courts are left in poorly briefed issues," he said. "The prisoners are not clear in what they need to prove."

If inmates can demonstrate the sincerity of their religious beliefs, the burden shifts to prison officials to explain why rules prohibiting prisoners' religious expression is of a "substantial government interest," McGuire said, citing the language of RLUIPA.

Usually, these issues are decided through informal prison grievance processes. McGuire said only the most egregious claims of religious rights abuses make it to court. And when they do, he said, "a lot of these don't really go anywhere because the prisoners can't properly construct arguments."

Metcalf, the Yale expert, said, "outlier cases" can steal the headlines because they have "entertainment value." They also run the risk of alienating people from paying attention to prisoners' rights abuses. That's why courts play a vital role in "trying to ensure that our prisons represent our values of dignity and fair treatment for all people," she said.

*This article is reprinted with the permission of the Connecticut Law Tribune.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.