Prison chaplains & separation of church and state

[KenP]

This morning’s newspaper brings the story of Warith Deen Umar,
who had a state-funded $67,919-a-year job ministering to inmates. Umar won’t be ministering anymore, after saying that “even Muslims opposed to terrorism admire and applaud the Sept. 11 hijackers.”

Anyway, my question is whether the constitutionality of state-funded prison chaplains has been tested in court.

[Hamlet]

It has been tested in court and usually the court considering it finds that, while it may be a technical violation, it is necessary to ensure that the prisoner’s rights under the Free Exercise clause are not violated. Thus, they generally stand.

Here’s a couple cases and quotes to get you started if you want to look more in depth.

From Muhammad v. City of New York Dept. of Corrections, 904 F.Supp. 161, S.D.N.Y.,1995.

It has long been recognized that providing chaplains in the military and in penal institutions presents a tension between the Establishment Clause and the Free Exercise Clause. E.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) ("Abington “); Theriault v. A Religious Office in the Structure of the Gov’t Requiring a Religious Test as a Qualification, 895 F.2d 104, 105 (2d Cir.1990); Monmouth County Correctional Inst’l Inmates v. Lanzaro, 834 F.2d 326, 341 (3d Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988); Theriault v. Silber, 547 F.2d 1279, 1280 (5th Cir.1977). In Abington, the Supreme Court noted that, although provisions for chaplains in the military or in penal institutions might contravene the Establishment Clause, they would be sustained as necessary to secure the right to worship guaranteed by the Free Exercise Clause. 374 U.S. at 296-98, 83 S.Ct. at 1610-1611 (Brennan, J., concurring). In prisons, where the government has significant control over inmates’ lives, “a niche has necessarily been carved into the establishment clause to require the government to afford opportunities for worship.” United States v. Kahane, 396 F.Supp. 687, 698 (E.D.N.Y.), ordered modified by 527 F.2d 492 (2d Cir.1975). Thus, in the prison context, “the establishment clause has been interpreted in the light of the affirmative demands of the free exercise clause.” Kahane, 396 F.Supp. at 698.
The majority of cases dealing with the First Amendment rights of prisoners appear to be Free Exercise, not Establishment, cases. However, at least one court has held that " ‘the mere fact that a prison chaplain is of one particular faith’ does not constitute an Establishment Clause violation.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995) (quoting the decision of the district court below). See also Johnson-Bey v. Lane, 863 F.2d 1308, 1312 (7th Cir.1988) (stating that "[p]risons are entitled to employ chaplains and need not employ chaplains of each and every faith to which prisoners might happen to subscribe, but may not discriminate against minority faiths except to the extent required by the exigencies of prison administration.

And you can look at Montano v. Hedgepeth, 120 F.3d 844 a more recent case that says:

**Indeed, states might commit a technical violation of the Establishment Clause by even hiring prison chaplains. Nonetheless, this is condoned as a permissible accommodation for persons whose free exercise rights would otherwise suffer. See School Dist. v. Schempp, 374 U.S. 203, 296-98, 83 S.Ct. 1560, 1610-12, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring); Johnson-Bey v. Lane, 863 F.2d 1308, 1312 (7th Cir.1988); Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311, 1329 & n. 6 (8th Cir.)(McMillian, J., dissenting), cert. denied, 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251 (1980). Having made religious leaders available to inmates, however, a state cannot “advanc[e] religion through indoctrination.” Agostini v. Felton, 521 U.S. 203, ---- - ----, 117 S.Ct. 1997, 2011-13, 138 L.Ed.2d 391 (1997). As a consequence, the state cannot compel or even encourage inmates’ attendance at religious services, and it most certainly cannot attempt to influence the religious messages which the chaplains convey to the prisoners.

**

Of course, both these cases refer to Brennan’s concurrence in Schemp, which can be found here

[KenP]

Thanks, Hamlet, for your answer.

Yes, I understand that if we’re going to lock people up, we may also need to provide them some access to religion.

I can see another First Amendment issue here: not just that taxpayers pay the Imam (if that’s the right word), but also that the Imam is not allowed to express his (extreme) ideas.

[Enola_Straight]

I was about to open a thread in great debates about this: how can government institutions like the military, police, and fire departments employ the services of chaplains and chapels without violating Church/State separation.

Now I know.