Fascinating!
I do think that the Lemon test is "tempered" in the prison context,
but not by virtue of Turner v. Safley. Rather, it seems to me that,
to the extent that prisons (and, to a lesser extent, the armed
forces) are closed off from free access to the religious element of
civil society, the government can justifiably try, to some extent, to
import or reproduce or sponsor a religious element into the prison,
even if that requires more direct financial support and entanglement
than could be justified in other contexts. Put another way, prisons
and similar settings present contexts in which the government might
be justified in recognizing a "positive" (as in the distinction
between positive and negative freedoms) free exercise interest that
mitigates, at least partially, against establishment clause concerns.
The decision that Scott quoted is problematic in two
respects. First, it wrongly relies on statist penological interests,
rather than individual free exercise interests, as the counterweight
to the establishment clause. This could very easily lead to a very
different set of results. Second, the analysis in Turner is framed
in terms of a balance (albeit one with a thumb on the scale) between
the prison's interests and the liberty of an individual. For
example, one of the "considerations" in the Turner calculus is
"whether there are alternative means of exercising the right that
remain open to prison inmates." And another consideration is "the
impact accommodation of the asserted constitutional right will have
on guards and other inmates." If the establishment clause is
understood, however, as protecting structural values rather than
individual rights, then the whole Turner analysis would have to be
substantially recast before it could make sense as a way of measuring
whether the state impermissibly crossed a "tempered" wall of
separation (forgive the mixed metaphor).
It's still fascinating, though.
Perry
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