Lack of Religious Freedom for Texas Inmates

In July, a Texas inmate named Bobby Brown challenged the Texas Department of Criminal Justice for the second time in the duration of his incarceration -- the first being in the 1970's. In the '70's, Brown, who is Muslim, challenged the Texas Department of Criminal Justice because he believed that the policy surrounding religious gatherings in the prison at that time did not allow Muslim inmates the same treatment that it allowed inmates of other religious groups. At that time, the policy regarding religion in Texas prisons was that chaplains or volunteers had to be present during religious gatherings of groups larger than four inmates. Brown wanted an exception to the policy for Muslim inmates because of the lack of Muslim chaplains or volunteers in the area. He argued that this was a limited the freedom of religion of those practicing Islam in Texas prisons. In response to Brown's complaints, the Texas Department of Criminal Justice issued a decree in 1977 saying that Muslim gatherings could be monitored under "indirect" supervision of a prison employee, rather than direct supervision by a chaplain or volunteer. "Indirect" supervision occurred in the same instances of direct supervision for other religious groups of four or more -- except the gatherings for Muslims were monitored by prison staff through video, windows, or audio devices, rather than the direct presence of a staff member in the gatherings.

Unfortunately for Brown, in 2009 an inmate who was a member of the Jehovah's Witnesses sued the Texas Department of Criminal Justice to try to obtain "indirect" supervision for minority religions in besides Muslims. Though the Texas criminal justice system did not have the funds of personnel to accommodate indirect supervision for all the religious groups represented in the Texas State prison system, the district court ruled in favor of the Jehovah's Witness inmate (William Scott). The court argued that the prison system was violating the Establishment Clause because "the Establishment Clause requires 'denominational neutrality'" and by allowing for some faith groups to meet under indirect supervision, while others had to meet under direct supervision, the system was favoring some religions over others. The court also argued that the First Amendment's "prohibition against preferential treatment is 'absolute'" and that Muslim inmates were being preferred over Jehovah's Witness inmates because the lack of volunteers and/or chaplains for both faiths was comparable, but Muslims were permitted to meet under indirect supervision while Jehovah's Witnesses were not. Because of this lawsuit, the Texas Department of Criminal Justice developed the "Scott Plan", which said that "all religious gatherings of more than four inmates require direct supervision, including worship and study by more than four Muslim inmates." Because of this phrasing, the Scott Plan overrode the policy established in 1977 which allowed Muslim inmates to meet without direct supervision.

Brown's second action against the Texas Department of Criminal Justice occurred in July when he took them to court with the same concerns he had in the 1970's. The case went to the Court of Appeals, where they had to decide if the Scott Plan burdened the religious freedom of Texas inmates in a substantial way. In the case, the court focused mainly on the problem with getting volunteers for groups of religious minorities and whether that was truly a problem the state should be blamed for. They went on to ask if "the government must accommodate religions dis-served by a lack of volunteers." Due to the opinions that security during gatherings of inmates held compelling state interest and that state policy did not adversely affect the practice of Islam in prisons (it was the lack of volunteers, not the state policy itself) the Court ruled in favor of the Texas Department of Criminal Justice, upholding the Scott Plan and nullifying the 1977 statute. Muslim and other inmates of religious minorities must now wait for chaplains or volunteers representing their faiths in order to worship in groups.

I think that the Scott Plan impairs the religious freedom of inmates practicing minority religions and is therefore unconstitutional. Though, as the Texas Court of Appeals argued in July, the plan may be facially neutral, it disadvantages religious minorities in practice. By requiring groups of inmates to be monitored directly by chaplains or volunteers of a given faith, Texas is allowing inmates of certain religions to have more frequent opportunities to practice their faith than inmates of other religions. My guess would be that, like the state itself, the prisons in Texas are most likely overwhelmingly Christian; and since the religious demographics of the prisons are similar to those of the state, there are likely to be a higher proportion of Christian chaplains/volunteers that come to supervise meetings of Christian inmates than other religions.

Since there is probably a higher proportion of Christian inmates than inmates of other religions in Texas prisons, and assuming that the religious demographics of Texas prisons are similar to those of the state itself, it might be logical that there would be more opportunities for inmates to practice Christianity while in prison. However, just because there are more Christian inmates than inmates of religious minorities, it does not mean that the Christian inmates should have more opportunities to worship that inmates of other faiths. This, though it may be indirect, is a policy that is not neutral between religions. I think that it is not neutral for Christian inmates to be allowed to worship more frequently simply because there are more Christian volunteers. The point of the First Amendment is to protect the rights of religious minorities, and by relying on a volunteer-based direct supervision program to give inmates time and space to practice their religions, the Texas Department of Criminal Justice is impairing the free exercise of minority inmates.