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U.S. Jewish Inmates Have Stake in Case Before Supreme Court

March 17, 2005
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When Brandl Rifka was serving time in a Florida prison, she asked for a special meal to break the Yom Kippur fast. Instead, she was given ham. “They did it purposefully,” she recalls angrily.

Brandl Rifka, who asked that she be identified by her Hebrew name because she is on probation, said she became more religiously observant during the two years she spent in Florida prisons after being convicted of fraud.

In a telephone interview from Florida, she said she faced anti-Semitism on a daily basis from prisoners and guards who, she says, inhibited her attempts to practice her religion, and by others who suggested she accept Jesus.

“It’s beyond punishment,” she said. “If you’re a Jewish prisoner, you’re ostracized in many ways.”

The question of inmates’ ability to practice their religion will come before the U.S. Supreme Court on March 21. The court will hear oral arguments in the case of Cutter v. Wilkinson, an Ohio case that is challenging the constitutionality of a law passed by Congress in 2000 that was intended to expand religious freedom in prison.

That legislation, the Religious Land Use and Institutionalized Persons Act, said prisons should not impose substantial burdens on religious expression, unless there was a compelling government interest. It also said prisons should use the “least restrictive means of furthering that compelling governmental interest.”

The court’s decision could have implications beyond the prison issue. The legislation requires a compelling reason for the government to deny religious organizations reasonable land use. If the court strikes down the existing law, the land use provision would be defeated as well.

The case before the court stems 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 purchase religious books and ceremonial items.

Experts say that some inmates become closer to God and religion while they are imprisoned, partially because they are seeking understanding and forgiveness for their misdeeds.

But just as Jews and other minorities are becoming more connected to their faith, they face serious difficulties in expressing it.

“Prisons these days are much more preventive and restrictive than ever,” said chaplain Gary Friedman, chairman of Jewish Prisoner Services International, a Washington state-based group that advocates for prisoners’ religious freedom and provides services and materials.

“Corrections people are feeling the people’s mandate to punish, and that means restricting everything, and it extends to religious practice.”

Prisoner advocates say that even though the situation continues to be difficult for Jews, the 2000 law has been instrumental in aiding their fight for Jewish expression.

It is unclear how many Jews are in prison, because the government does not keep statistics on inmates’ religion. Friedman said his organization is in touch with 5,500 inmates, but estimates the number of Jews in prison could be double that.

The situation for Jews and other religious inmates varies from state to state.

Some prisons prevent all religious expression, concerned that prisoners will use religion as a way to get increased privileges. Indeed, some Jewish prisoners interviewed admitted they were drawn to worship services in part because it got them out of their cells each week.

But other prisons allow some religions to flourish while stifling religious minorities.

In some states, such as Colorado, the chaplain service is run by evangelical Christians who do not advocate for rights for Jewish prisoners, Friedman said.

And most states do not provide adequate kosher foods, forcing observant prisoners to eat vegetarian meals, which may lead them to stop keeping kosher, he said.

Richard Dobelle, who spent more than 12 years in federal prisons for trafficking cocaine, recalled in a phone interview from Florida that he told the chaplain at one federal prison that he couldn’t have grain products on his tray during Passover, but the Christian chaplain didn’t tell the kitchen staff.

“He wouldn’t do it,” said Dobelle. “He said they couldn’t do it, but the kitchen told me something different.”

Dobelle, who was released last December, said some prisons allowed him to wear tefillin regularly but others did not, considering them a potential weapon.

At one prison, he had to petition up the chain of command to keep his tefillin in his room but the request was denied. He was told to go to the chaplain every day to retrieve them; eventually, he sneaked them in.

Friedman said prisons are scared of tefillin because the straps could be used as a weapon or a tool for suicide. That, he said, is why many penitentiaries do not permit their use.

At the heart of the court struggle is an effort to get prison officials to think about ways to let religious materials in, Friedman said.

Instead, their tendency is to exclude anything if it could possibly pose a threat.

A U.S. District Court in Ohio ruled for the plaintiffs in 2001, saying the Religious Land Use Act did not violate the Establishment Clause of the Constitution, because government is allowed to alleviate governmental interference with religion.

The Sixth Circuit Court of Appeals in Cincinnati reversed the decision in 2003, arguing the legislation advanced religion by “giving greater protection to religious rights than to other constitutionally protected rights.”

The Bush administration is defending the law, arguing that it does not afford religious beliefs a new status, but ensures that religious freedoms are evenly extended.

A wide consortium of Jewish groups are parties to a brief, filed by the Becket Fund for Religious Liberty, that says the law has the purpose of protecting the free exercise of religion from unnecessary government interference.

For its part, the Ohio government has argued that religious accommodations compromise prison security, and that the law would lead to a dramatic enhancement of prisoner rights, disrupting prison operations.

“It is a powerful tool that prisoners advancing religious claims can use to obtain accommodations,” said the respondent’s brief. “And the standard Congress mandates — strict scrutiny — is the most demanding test known to constitutional law.”

They also argue that the law exceeds Congress’ powers.

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 such a law, which, the court said, infringed on states’ rights.

The new law, meant to address some of those concerns, cites federal grants to state prisons as justification for the measure.

Meanwhile, experts and former prisoners say Jews are at a disadvantage because there are only a handful of them at each penitentiary, as opposed to many Christians and Muslims.

“It’s like Tonto and the Lone Ranger riding alone, with all the Indians around them,” said Robert Burns, a former inmate who is now director of prisoner services at the Aleph Institute, a Chabad organization that reaches out to Jews in prison.

While some Jews embrace their religion in prison, others assimilate for fear of anti-Semitism.

Brandl Rifka tried to get other Jewish prisoners to celebrate Rosh Hashanah with her. She bought tuna fish and potato chips from the commissary — her definition of a “special meal” at the time — and went to bring it to her peers. An officer stopped her, called her a profanity, threw the meal on the ground, and with a foot on her back, made her pick it off the floor.

“I was discouraged from being a Jew,” she said. “I understood at that point if I didn’t embrace my Judaism, that is how it gets lost for everybody.”

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