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U.S. prisoners have kosher rights, too

Rabbi Sholom D. Lipskar, founder and chairman of the Aleph Institute, left, wraps tefillin with an inmate behind bars.  (Courtesy of the Aleph Institute)

Rabbi Sholom D. Lipskar, founder and chairman of the Aleph Institute, left, wraps tefillin with an inmate behind bars. (Courtesy of the Aleph Institute)

WASHINGTON, May 31 (JTA) — Kosher meals and other expressions of religion may become more accessible for state and federal prisoners in America, after the U.S. Supreme Court this week upheld the constitutional right to religious accommodation for minorities in prisons. In a unanimous decision delivered Tuesday, the high court found the Religious Land Use and Institutionalized Prisons Act to be constitutional. The ruling said religious accommodations should be allowed in prisons unless they conflict with a compelling government interest. Justice Ruth Bader Ginsburg said the law does not promote religion, as an appeals court had determined, because it does not single out any faith above others. The Supreme Court also said the law would not place an undue burden on prisons, as the state of Ohio, which challenged the law, had argued. “We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety,” Ginsburg wrote, using the acronym for the legislation enacted in 2000. “Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.” The ruling was welcomed by American Jewish organizations across the religious and political spectrum. Many Jewish groups had worked to get the legislation passed in Congress. Many said an alternative decision could have substantially limited the rights of lawmakers to provide any accommodations for religion. Marc Stern, counsel for the American Jewish Congress, said the ruling ends the debate over whether government accommodation of religion is equivalent to the establishment of religion. The focus, he said, will now shift to determining the limits of appropriate accommodation. “It will end the recurring argument about whether prison officials are required to provide religiously acceptable meals,” said Stern, who served as co-counsel for the petitioners, representing the Bush administration and several prison inmates. “The states will now have to come forward with real justification” for denying access to books, worship services and religious materials, like yarmulkes and tefillin, he said. During oral arguments for the case, Cutter v. Wilkinson, in March, the Supreme Court justices had discussed access to kosher meals as an example of religious interests that should be fulfilled. Arguing for the plaintiffs, acting U.S. Solicitor General Paul Clement said that if state governments accepted federal funds for prison meals, the federal government could ensure that kosher meals were provided. The court did not rule on another aspect of the law, which requires the government to have a compelling reason if it denies religious organizations reasonable land use. Stern said that since the court didn’t address this issue, it would be easier to defend the constitutionality of the zoning provision under the law, which makes it easier for synagogues and other religious institutions to be built. Though Jews make up a small proportion of the prison population, they often are discriminated against and denied religious materials, such as kosher meals and tefillin, advocates for Jewish prisoners say. It is unclear how many Jews are in prison, because the government does not keep statistics on inmates’ religion. Chaplain Gary Friedman, chairman of Jewish Prisoner Services International, said his organization is in touch with 5,500 inmates, but estimates the number of Jews in prison could be double that. Friedman said he is “absolutely delighted” at the ruling, saying it would help prevent phony claims of burdens on prisons to prevent religious expression. “At one point, all a prison had to do was make a claim,” he said. “Clearly, now it is a much heavier hammer and they are going to have to substantiate any claim of compelling government interest.” But, Friedman said, the question will now turn on whether the Justice Department enforces the law. The case before the court stemmed from complaints by members of several fringe religions — Wicca, Asatru and the Church of Jesus Christ — who filed lawsuits after being denied the ability to worship and buy religious books and ceremonial items in prison. A U.S. district court in Ohio ruled for the plaintiffs in 2001, saying the act did not violate the Establishment Clause of the U.S. Constitution — which prevents the state from endorsing a particular religion — because government itself can through legislation alleviate its own restrictions. The 6th Circuit Court of Appeals in Cincinnati reversed the decision in 2003, arguing that the legislation unfairly advances religion by “giving greater protection to religious rights than to other constitutionally protected rights.” The Supreme Court’s ruling Tuesday reversed the appeals court. In 1997, the U.S. Supreme Court struck down a broader version of the legislation, the Religious Freedom Restoration Act, ruling that Congress did not have the authority to enact a law that the court said infringed on states’ rights. Michael Lieberman, Washington counsel for the Anti-Defamation League, noted that Tuesday’s opinion cited information and statistics provided to Congress from Jewish organizations during debate over the 2000 legislation. He said that careful drafting of legislation can help determine a law’s constitutionality, and the court can rely in part on that kind of data. The legislation passed in 2000 had been supported by a wide swath of Jewish groups, many of whom joined the Becket Fund for Religious Liberty and other civil liberties groups in a brief backing the petitioners in the case. Those groups included the American Jewish Committee, the ADL, B’nai B’rith International, the Jewish Council for Public Affairs and all the major Jewish religious movements.

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