482 U. S. 342
June 9, 1987
Shabazz was an inmate at a New Jersey prison, and was a devout Muslim. He desired to observe Jumu’ah every Friday with other prisoners of the Muslim faith. For some time, this was allowed, until the prison changed the rules, citing security and logistical concerns. Shabazz claimed that denying him the opportunity to participate in Jumu’ah violated the Free Exercise clause.
In a 5-4 decision, Rehnquist sided with the prison authorities. Citing Turner v. Safley, decided just eight days earlier, Rehnquist said that the legal test in prisons when fundamental rights (like free speech, marriage, or religion) were implicated was whether the regulations were reasonable and related to penological interests. He observed that concerns over security, and the logistical difficulty of accommodating the Jumu’ah meeting were reasonable ones. He further observed that Muslim prisoners already received a good deal of accommodation, and that prisons had a right to discourage affinity groups from forming.
Brennan dissented, and was joined by Marshall, Blackmun, and Stevens. They observed that fundamental Constitution rights ought not be abrogated on the basis of “reasonableness,” even in the prison context. Even assuming that standard though, Brennan thought the prison was unreasonable. He pointed out that federal prisons allowed Jumu’ah to be observed, and that Jumu’ah was as central to the Islamic faith as Mass was to Catholicism. Finally, he showed that the prison’s asserted interest did not appear to be backed up by any factual findings, and thus argued that these interests should not be afforded blind deference.
A puzzle is why Stevens dissented. As we’ve seen before, he is almost invariably against religious claimants. This is the only time I’m aware of that he ever dissented in favor of a religious claim. My best guess is that he knew how tacky it would look to abandon wholesale the logic of the Turner dissent that he had joined just eight days earlier. As for the majority, its analysis was highly disappointing. This was yet another hammer blow in the slow and tragic death of the Free Exercise clause at the hands of the conservatives. Fortunately, the Religious Land Use and Institutionalized Persons Act of 2000 mitigated some of the damage done by O’Lone.
The brief discussion about affinity groups caught my eye. The prison said “any time you put a group of individuals together with one particular affinity interest . . . you wind up with . . . a leadership role and an organizational structure that will almost invariably challenge the institutional authority.” Interesting. Islam, and Christianity for that matter, do indeed challenge institutional authority. Both declare that God is above America, and that His laws trump a nation’s civil laws. In 1987, this thought apparently terrified conservatives. Today, it terrifies liberals to an almost unthinkable degree. It just goes to show that everyone on the political spectrum, to one level or another, hates the idea of God’s sovereign authority (Cf. Romans 8:7).