2000 law also prohibits communities from zoning out houses of worship
Two New Jersey State Prison inmates in Trenton are demanding the right to build a sweat lodge so they can perform purification rituals of their Native American religion. An inmate at East Jersey State Prison in Woodbridge claims corrections officials violated his right to practice his adopted Wiccan beliefs, more popularly known as witchcraft.
Their lawsuits are among scores filed by inmates around the nation under a federal law enacted five years ago to protect the free exercise of religion by those in prisons, nursing homes, psychiatric hospitals and other institutions.
Today, the U.S. Supreme Court is scheduled to hear arguments in a case from Ohio on whether that law is constitutional. In 2003, a federal appeals court in Cincinnati ruled it violates the separation of church and state by promoting religion behind bars.
“It has the potential to be a blockbuster,” said David Goldberger, a law professor at Ohio State University representing Ohio prison inmates invoking the law’s protection.
If the law is stricken, other government accommodations for religion could also be jeopardized, including employing chaplains in jails and the military or allowing exemptions from vaccination requirements on religious grounds, Goldberger said.
And it could also kill a federal ban that keeps local governments from using zoning to stop the construction of houses of worship — a “very important” weapon for attacking restrictions based on “rank bigotry,” according to the American Jewish Congress’s Marc Stern, who is Goldberger’s co-counsel.
The law in question — The Religious Land Use and Institutionalized Persons Act of 2000 — was prompted by abuses by prison officials who tape-recorded inmates confessing their sins to priests and refused to allow Jewish inmates to have matzo during Passover or Christians to have crosses, according to court papers filed by Solicitor General Paul Clement.
The case has made strange bedfellows: Those supporting the law include the American Civil Liberties Union, the Bush administration and Ohio inmates who want to worship Satan, study witchcraft and preach white supremacy.
Ohio prison officials attacking the law contend savvy inmates have used religious services as a front for illegal activities and meetings of racist gangs. New Jersey corrections officials want the law to be overturned. They said they accommodate religious practices, up to a point.
“We fundamentally believe an inmate should have the right to practice his or her religion as long as it does not impede the order, safety and security of our facilities,” Corrections Commissioner Devon Brown said. “We believe if there’s any group of individuals who need to find God, we have them.”
Ronald Bollheimer, the department’s head of legal affairs, said if the federal law is upheld, prison security would be threatened, costs would rise and more inmates would file lawsuits claiming religious rights as a way “to manipulate the system.”
“Using religion is a perfect way to hide some things you want to do as a group,” Bollheimer said.
He said gang members sometimes show up at religious services to get together, pass notes and plan activities. When they do, they can be banned from attending services. Bollheimer said the department is frequently tipped off by inmates who resent having their faith used as a subterfuge for gang meetings. “The true believers will dime them out,” he said.
In 1998, in response to gang violence, the corrections department opened a special unit at the Northern State Prison in Newark to isolate and re-educate gang leaders. Since then, organized prison violence has dropped 84 percent, according to Ron Holvey, principal investigator in the department’s special investigations division.
Several members of the Five Percent Nation, a breakaway black supremacist branch of Louis Farrakhan’s Nation of Islam, went to federal court claiming their transfer to the gang control unit amounted to unconstitutional religious persecution. The claim was rejected by the federal appeals court in Philadelphia.
The two New Jersey lawsuits by inmates who say their religious rights have been infringed are on hold until after the U.S. Supreme Court rules on the federal law.
Two convicted murderers, Jesus Sanabria and David Russo, are suing for the right to construct a sweat lodge on the grounds of New Jersey State Prison. According to their lawyers, a sweat lodge is as important to the Native American religion as confession is to Catholics or kosher meals are to Jews. They said other prisons — including the low-security Federal Correctional Institution at Fort Dix — provide sweat lodges.
State prison officials describe a sweat lodge as a security nightmare. A large hut constructed of willow saplings and covered with blankets or tarps, its darkened interior provides the ideal “blind spot” for inmates to have sex, share drugs, store weapons or assault fellow prisoners, according to an affidavit by Roy Hendricks, the prison administrator.
In the second case, Patrick Pantusco, who is serving a 30- to 50-year sentence for murder, claims officials at East Jersey State Prison infringed his right to practice the Wiccan religion to which he converted in 2002. He wants money damages and certain artifacts, including a Wiccan necklace.
Prison rules require inmates to wear religious items such as crosses and necklaces under their shirts, except when in their cells or at services. Bollheimer said openly displaying religious items can provoke fights and be used as a means of gang identification.
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