In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court, using a deferential standard of review for prison policies, held that inmate religious rights may be restricted for security concerns; the policies were not in violation of the free exercise clause of the First Amendment. This holding led to several attempts by Congress to require that courts apply a less deferential standard of review in cases involving governmental interference in religion.

In O’Lone, inmates in a New Jersey prison sued, alleging that prison policies that required some inmates to work outside the prison, and which barred these inmates from returning to the prison during the day, violated their right to free exercise of their religion. These inmates wished to return to the prison during the day to participate in a Muslim religious service. The policies applied to all work-eligible inmates and were intended to minimize disruption and danger associated with moving inmates in and out of prison. The U.S. district court had upheld the policies as reasonable security measures, but the U.S. appellate court had reversed on the grounds that the state should have to prove that there were no alternate measures that might accommodate the prisoners’ rights.

Writing for the majority, Chief Justice William H. Rehnquist overturned the circuit court decision and upheld the prison policies. In Turner v. Safley (1987), decided one week earlier, the Court held a regulation was valid if it was “reasonably related to a legitimate penological interest.” The majority in O’Lone applied this standard to the New Jersey prison work policies and upheld them as reasonably related to the legitimate penological interest of security. The Court refused to apply a stricter standard of review (such as strict scrutiny) to a prison policy simply because it interfered with freedom of religion.

This case is significant because with it the Court used a standard of review that is deferential to prison administrators’ interests and difficult for inmates to overcome. This standard of review has since been modified.

In 1993 Congress passed the Religious Freedom Restoration Act (RFRA), which required the use of “strict scrutiny” for reviewing federal laws affecting religious practices. Under the RFRA, a federal law could not “substantially burden” a person’s religious practice unless there was a “compelling state interest” and the law used the “least restrictive means possible.”

The Supreme Court struck down the RFRA as applied to state and local governments in City of Boerne v. Flores (1997) on the grounds that it exceeded Congress’s authority under the Fourteenth Amendment. Congress then passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2003. Section 3 of the RLUIPA addresses the free exercise rights of institutionalized persons, including inmates. The RLUIPA retained the “strict scrutiny” test of the RFRA but based its authority on the Spending and Commerce Clauses.

A group of Ohio prisoners then sued, alleging the prison was interfering with their religious practices. In Cutter v. Wilkinson (2005), the Supreme Court held that the RLUIPA did not violate the First Amendment because it did not elevate accommodations of religious practices over an institution’s need to maintain order and security. Justice Ruth Bader Ginsburg noted that although the RLUIPA requires application of strict scrutiny, rather than the Safley test,“context matters in the application of that standard.” In other words, although the RLUIPA requires application of “strict scrutiny,” courts are still expected to give great weight to the interests of prison administrators. It suggests the Supreme Court will permit some restriction on inmate religious practices, even under the strict scrutiny test.

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