From Bryant v. Tilton, 2008 WL 149990 (E.D. Cal. 2008): "On
March 9, 2007, plaintiff commenced this action by filing a complaint,
challenging the constitutionality of the Family (Overnight) Visiting
program as adopted by the California Department of Corrections and
Rehabilitation (CDCR). He alleges that he has been incarcerated since
1979 and is serving two concurrent life terms of imprisonment for
murder. Plaintiff also alleges that he wed in 1993 and was allowed to
participate in the family visiting program at that time. Plaintiff
alleges that sometime in 1997, the CDCR amended the family visiting
program to exclude inmates with certain classifications, inmates who had
been convicted of certain offenses and inmates, such as himself, who do
not have parole dates established by the Board of Prison Terms ....
"Plaintiff ... contends that his exclusion from the program
violates his rights under the First Amendment Free Exercise Clause and
the Religious Land Use and Institutionalized Persons Act ('RLUIPA')
because, as a Muslim, he must consummate his marriage within four months
pursuant to Islamic law, or his wife may file for annulment or divorce."
Now the court rejects this claim on the facts: "Here, plaintiff
has failed to sufficiently allege that the regulation in question
infringes on or substantially burdens his free exercise of religion.
Plaintiff alleges merely that the regulation violates his free exercise
rights because, under Islamic law, his wife may file for an annulment or
divorce if their marriage is not consummated within four months.
However, as defendants point out, plaintiff wed in 1993 and at that time
he was able to participate in the family visiting program. In fact,
plaintiff participated in the program until 1997. The allegations of
the complaint in this regard, even accepted as true, fail to establish
that plaintiff was impeded in the exercise of his religion by the
challenged regulation."
My question: Say the facts were a little different, and the
inmate believed -- in a not implausible reading of Jewish law, see
http://www.jewfaq.org/sex.htm -- that "A man has a duty to give his wife
sex regularly and to ensure that sex is pleasurable for her." Would
RLUIPA therefore mandate that the prison provide the inmate with
conjugal visits?
Eugene
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