In response to the Covid 19 pandemic, in March of 2020 the Department of Corrections for the state of Wisconsin adopted a policy that banned volunteer visits inside their prison system. This policy effectively banned any visits from religious institutions to inmates. Since the adoption of the policy in 2020, attorneys and other Department of Corrections employees have been allowed in person visits provided that they follow all health and safety protocols put in place inside the prisons.
In response, the Archdiocese of Milwaukee filed a suit on May 7th, 2021 arguing that this policy violates a state law that grants leaders from all faiths weekly visits to inmates. The archdiocese also allege that the policy violates the inmate’s 1st Amendment right to freedom of religion. In June of 2021, Wisconsin prison officials announced that they would be lifting the ban on volunteer visits to prisons, meaning that clergy members were now free to resume their weekly visits. However, the announcement made no mention of the lawsuit and the department spokesperson said the suit did not spur the return to in person visitations.
Prisons have a large population of people living in close proximity to one another, making them an extremely vulnerable population to a widespread outbreak of Covid. Especially during the early days of the pandemic when no one was completely sure about how deadly the virus was going to be, it became necessary to take serious action to prevent the spread. Banning volunteer visits to prisoners definitely represents a reasonable and neutral action to keep the prison population safe, especially considering the policy did not target religion specifically but focused on the entirety of volunteer visits.
The cases that best support my argument are the two concerning flag saluting. In Minersville School District v. Gobitis, the court ruled in favor of the school because they believed that there was a compelling state interest to regulate the action. In the opinion of the court, when describing the main constitutional question, Justice Frankfurter poses the question: “When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?” In this case, the question is whether a student not participating in a class flag salute would cause significant harm to society to justify state regulation of the action. While I agree with the decision in West Virginia State Board of Education v. Barnette to overturn the ruling in Minersville, I believe the logic from the ladder case still applies here.
In the Wisconsin case, the “great common end” that society is promoting is the safety and well-being of the population of Wisconsin’s prisons. During the course of the pandemic, the entire country had to give up certain rights in the face of an uncertain future, and as Justice Frankfurter stated in his dissenting opinion in West Virginia State board of Education v. Barnette, “The constitutional protection of religious freedom terminated disabilities, it did not create new privileges.” People all across the country faced restrictions on how and where they could practice their faith as we all adapted to the changing landscape of the pandemic. Wisconsin’s prison population should not be granted an exemption from this practice.
One might be quick to point out that, while volunteer visits were banned, state employees and attorneys continued to be allowed to visit inmates. Someone might argue that there is no reason that the exemptions granted to these individuals should not be extended to religious visits, to which I would argue that state employees and attorneys are vital to the continued operation of the prison, while religious visits are not. These people are “essential workers” and clergy members are not.
https://apnews.com/article/wisconsin-religion-prisons-coronavirus-pandemic-government-and-politics-094226c14fe4283c59ac55bad3f0364e
6 comments:
I agree that while at the beginning of the pandemic there was a compelling state interest in regulating visitors to the prisons because of the significant unknowns regarding the pandemic and the need to keep everyone safe. However, beyond the initial shutdown, I believe it does violate the right of the prisoners to freedom of religion. Other areas of society managed to find ways for visitors, including nursing homes and hospitals with arguably more vulnerable patients. As a result, there should have been safety protocols in place, but not the complete ban of voluntary visitors, specifically for religion.
I think the state had clear, compelling reasons to prohibit religious visits during COVID-19. The health of prisoners and prison staff should take precedent over religious activities and I do not think restricting visits violated prisoners 1st amendment right. First, the DOC did not prevent prisoners from practicing religions in a COVID safe environment and prisoners could engage in prayer and religious activities while isolated and alone. Second, COVID-19 presented a global threat to the health of every citizen, thus the restriction of visits was symptoms of universal policies rather than specific religious restrictions. As citizens of America and members of democracy, it is not unconstitutional for the state to enforce polices that benefit the greater good. I think it is reasonable for prisoners to temporarily sacrifice their religious visits during the pandemic. Additionally, their position as prisoners, in a crowded and inside facility, directly contributed to the spread of COVID.
This to me feels like a "peace and good order situation." Used in a variety of cases as precedent is Jefferson's statement that government cannot regulate religion unless there is a risk to peace and good order. Ryan brings up a good point when it comes to the speed at which a virus-like covid-19 can spread in a tight environment like prison. I would like to add to this by acknowledging the notoriously poor health care in many prisons. While not universal to all prisons, Covid was an additional threat to the incarcerated due to preexisting conditions and unreliable health care especially in the case of a mass outbreak. The potential risk to the lives of the incarcerated far outweighed the need to meet with a religious leader at least in the eyes of the state. It is frustrating that others were allowed in and it does make this case more confusing but I do agree with Ryan's assessment of the compelling state interest in regulating visitors.
I do agree that there is a public safety risk in allowing outside persona into prisons during the COVID pandemic. One point to the contrary is that state employees and attorneys are still allowed in, which although they are possibly more essential and this can be seen as a preference of non-religion over religion. There are safe ways to enable clergy members to visit. However, when people go to prison, they relinquish some of their rights, such as the right to vote. In this case, I believe it was a better decision to restrict visits from clergy members. The health of the clergy members and the prisoners should be prioritized over free exercise of religion. It is difficult in this case because this is an example of direct state control over the ability of citizens to practice their religion. At first in the pandemic, this was definitely necessary, but this ban may have lasted too long. Nonetheless, many rights were restricted to benefit the common good in the early days of the pandemic, including freedom of movement. Gatherings of more than a certain number of people were also restricted, so practitioners of religion found it difficult to continue to worship as they would prior to COVID. There were many arguments that this was also a violation of the free exercise clause, but in the end, there were agreements that people were still able to practice their religion, they just had to readjust how to. Just because they couldn’t gather together, or just because clergy members weren’t able to visit the prisons in this case, doesn’t mean that religious practices were being completely restricted.
I am perhaps very biased about this topic, but I struggle thinking about how the pandemic impacted everyone's mental health. Religion is a lot of people's outlet and what makes them get up every morning. Being trapped in a prison and not being able to have any visitors makes me sick to my stomach. That being said, I do agree with the court that the First Amendment rights were not violated because the rule applied to all visitors, not just religious ones. I simply think the rule was wrong to begin with, and certainly should not have been in place for as long as it was. While this is not the same as real human-interaction, I am curious whether or not Zoom visits were available for inmates?
I also believe these claimed 'efforts' to stop the spread of COVID were not effective, as prisons had some of the highest COVID death rates in America. Why is the strict restriction of visitors important but providing vaccines not? I just find it all extremely sad.
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