Waterloo, IA – Rubashkin Dispute Reignites Legal Question How Much Religious Freedom to Allow Prisoner

Waterloo, IA – Each morning before he prays in his jail cell, Sholom Rubashkin wraps a thin black band from his forearm to his fingertips, and he wraps another band around his head.

It was the leather straps and a prayer shawl – all viewed as potential weapons – that caused the Black Hawk County sheriff last week to deem Rubashkin’s religious needs too dangerous for the local jail, county officials and Rubashkin’s rabbi said.

The incident raised the thorny legal question of how much religious freedom to allow prisoners.

Last week in court, defense attorney F. Montgomery Brown explained that Rubashkin’s First Amendment rights require certain religious accommodations.

But legal experts say it’s not the Constitution, but a law passed a decade ago by Congress that often requires the government to go to great lengths to accommodate the religious needs of prisoners.

Prison officials must have strong reasons for not accommodating a prisoner’s religious needs, one expert said.

“The reasoning can’t just be providing a kosher meal is too complicated or it’s an extra expense,” said Charles Haynes, a senior scholar at the First Amendment Center in Washington, D.C. “That’s not good enough.”

The law says the government cannot “impose a substantial burden on the religious exercise of a person, including a religious assembly or institution” without showing a compelling interest – such as prison safety. Officials must also prove no less-burdensome method of meeting the request exists.

In practice, the law has allowed white supremacists access to religious texts considered extreme hate speech by prison officials.

Muslim prisoners have challenged prohibitions of community prayers on Fridays after officials deemed the large public gatherings of prisoners too dangerous.

American Indians on death row have made a sweat lodge ceremony their last request, arguing they should be accommodated because Catholics receive last rites.

The Religious Land Use and Institutionalized Persons Act was a reaction to a 1990 U.S. Supreme Court decision, legal scholars say.

In the case, the state of Oregon denied unemployment benefits to two American Indians fired from their jobs for testing positive for a substance found in peyote cactus, a hallucinogen used in religious ceremonies.

The court ruled in favor of the state because a ban on possessing peyote applied to everyone equally. It noted the law did not make any religious exemptions.

Congress worked for a decade to override the court’s decision, passing the law in 2000.

Yet prisons, by definition, deprive people of liberties. Black Hawk County District Associate Judge Nathan Callahan said as much last week in court when he used a sweat lodge as an example of an unreasonable accommodation.

“If the defendant were a Native American, and his religious requirements included a sweat lodge and the use of hallucinogenic plant material, that would be denied,” Callahan said.

“I’m not trying to be disrespectful of anybody’s religious traditions or beliefs,” he said. “But I’m not derailing this proceeding because of his choice.”

A constant tension exists between a prison’s need to maintain discipline and safety and a prisoner’s right to practice religion because there is no clear legal line defining when a religious accommodation becomes unreasonable, officials said.

The law is murky enough that it’s fairly common for prisons around the country to encounter the issue, said Haynes, the first amendment scholar.

“The fact that Congress (passed the law) shows that, I think, in the United States there’s still a very strong commitment to allow people to follow their conscience to practice their faith, even in prison,” he said.

Rubashkin arrived at Black Hawk County Jail around noon on Monday ahead of his trial on 83 misdemeanor child-labor charges stemming from his time as an executive at Agriprocessors Inc. in Postville.

Problems began the moment he entered the jail, Rabbi Avremel Blesofsky said.

The Black Hawk County sheriff’s office confirmed Rubashkin had been moved to Linn County jail, but did not comment beyond statements made in court last week.

The Black Hawk County Jail staff removed Rubashkin’s yarmulke and tzistzis – his skull cap and cloth white strings that hang from the hips of a man’s pants, all parties said. His faith as a Hasidic Jew prohibits him from moving more than about 18 inches without the religious garb.

So staff carried Rubashkin to move him around the jail before eventually providing his religious attire, according to statements made in court.

Rubashkin claimed staff dragged him on the floor about 40 feet to his cell, even after he said they could transport him by wheelchair, Blesofksy said. Rubashkin reported no injuries.

Rubashkin also refused to eat for about 24 hours in what his defense attorney called a hunger strike. The jail provided kosher food, but rendered it not kosher by cooking it in the prison kitchen, he said.

Blesofsky said he believes ignorance of Rubashkin’s religious needs created most of the problems at Black Hawk County Jail.

Blesofsky, who has made dozens of visits to jails on the East Coast and in eastern Iowa, said this is the first time he has encountered so much resistance to religious requests.

“That’s really inexcusable. Before you rough someone up or carry someone around unnecessarily, you have to make a few calls to find out his religious needs,” he said.

It’s not the first time Rubashkin’s faith has resulted in confrontations inside prison walls.

Rubashkin’s family alleged similar problems in November when prison staff in Sioux Falls, S.D., removed his religious attire after his conviction on federal financial fraud charges.

In February at the Linn County Jail, a disagreement between Rubashkin and another prisoner over a television’s volume turned into a physical fight. Blesofsky said the disagreement started because the prisoner was annoyed by Rubashkin praying out loud.

During the remainder of the state trial, Rubashkin will travel each day from the Linn County Jail in Cedar Rapids to the courthouse in Waterloo.

Rubashkin has practiced his religion to his satisfaction in the Linn County Jail for the past six months as he awaits sentencing after his conviction on 86 federal financial fraud charges, Blesofsky said.

Rubashkin prays three times a day, always before eating. He must wash his hands before either act, using water from anywhere but a bathroom tap.

Attached to the black straps Rubashkin wraps on his body for prayer are little black boxes containing pieces of parchment inscribed with verses of the Torah.

Rubashkin wears the bands and boxes, called tefillin, and prays and recites psalms aloud for up to 90 minutes in the morning and for about half an hour in the afternoon and evening.

The jail also allows him 10 books for his religious study. Brown said last week in court that Rubashkin spends a large portion of his days in jail on religious studies.

“He doesn’t watch TV and watch football games. He reads stuff,” he said.