Do American prisons provide kosher diets for inmates who profess to be observant
Jews? Most Israelis – and probably nine of 10 Israeli judges – would
instinctively assume that they do.
They would be surprised to hear that
until last week – when a federal appeals court rejected their argument – prison
authorities of Florida (a state with a Jewish population that exceeds 600,000)
claimed it was too expensive to provide kosher food to Bruce Rich, acknowledged
to be an Orthodox Jew, who was serving a life sentence in Florida’s largest and
Rich represented himself in filing a lawsuit to get a
kosher diet. His claim was vigorously opposed by the Florida Department of
After Rich lost in the lower court, the Becket Fund for
Religious Liberty took over his appeal pro bono. Jewish groups then came in to
support his claim with friend-of the- court briefs, including one that I drafted
for the National Jewish Commission on Law and Public Affairs (“COLPA”) and seven
Orthodox national Jewish organizations.
Federal prisons have been
required to provide kosher diets since Meir Kahane won a lawsuit against the
United States Bureau of Prisons in 1975. But state prisons have lagged behind.
In May 2011, the federal court of appeals headquartered in Chicago had a case
brought by inmates in Indiana prisons who had been denied kosher diets. The
Indiana officials were appealing from a lower-court decision that directed them
to provide kosher food. When they realized that they were confronting a
formidable group of adversaries, they dropped their appeal and agreed to make
kosher food available to religiously observant prisoners.
The right of a
Jewish prisoner in a Texas state prison to kosher food was upheld by a federal
appeals court this past December, although the same court of appeals had, in
2007, rejected a demand for kosher food in the Texas state prisons (which house
approximately 900 Jewish inmates).
These recent active controversies over
so fundamental a religious-liberty issue as kosher food in prisons demonstrates
how slowly and reluctantly the civil-rights claims of religious observers are
being recognized and upheld by American courts and government agencies
responsible for the administration of justice. I am currently litigating in a
New York federal court over the right of a New York City police recruit to
maintain a short religiously obligatory beard and recently settled a similar
case against the United States Army that initially refused to accept a Chabad
Jewish chaplain who refused to shave or trim his beard.
resistance to these religiously based claims to the sea change in attitude over
the past half century regarding gender discrimination and discrimination based
on sexual orientation. In 1967, when I was a young lawyer with the Department of
Justice, I was assigned to argue in the Supreme Court in support of the
Immigration Service’s decision to deport a Canadian citizen who had been
admitted to the United States.
His mother, stepfather and three siblings
lived in the United States, so deporting him was singularly cruel.
only grounds for his deportation were that he admitted to having committed
homosexual acts in Canada and in the United States.
Service classified him, on the basis of these admissions, as deportable because
he was “afflicted with psychopathic personality.”
By a six-to-three vote,
the Supreme Court approved his deportation. Only justices Douglas, Brennan and
Fortas would have permitted this acknowledged gay young man, who was otherwise a
model US permanent resident, to remain in the United States with his immediate
family. Conduct that was considered “psychopathic” in 1967 is now viewed as so
firmly protected by the Constitution that at least four Supreme Court justices
will probably invalidate state laws that give homosexual union less respect than
Any smidgen of gender discrimination is also
condemned by today’s society. Yet in 1961, the Supreme Court issued a decision
that permitted a woman to be charged with murder by a Florida grand jury that
had minimal female representation because women were automatically exempted on
request and permitted to serve on the grand jury only if they volunteered.
Justice Harlan’s opinion said that women were “still regarded as the center of
home and family life” so that it was permissible to keep them off grand juries
unless they volunteered.
No Supreme Court justice dissented.
has religious observance in the United States not benefited during the past half
century from the increased tolerance and respect given by government and the
private sector to changing sexual mores and to attitudes to women? Recognition
of the rights of these previously disadvantaged groups (as well as accommodation
to the disabled) has taken giant steps during this time, but accommodation to
the religious observance of minorities is still made grudgingly, if at
Religious observance of dietary restrictions was neither criminal
nor even discouraged years ago. Yet the flurry of recent litigation over kosher
food in state prisons demonstrates that the legal order welcomes it less
generously today than it welcomes conduct that was prohibited or severely
discouraged decades ago.
The author is a Washington, DC, lawyer who has
argued 28 cases in the US Supreme Court and is an adjunct lecturer on Supreme
Court litigation at Columbia Law School.