I think we probably all agree that the RLIUPA claim here should and will fail, because of the compelling prison interest in not so selectively rendering such a universally desired accommodation.
And for just that reason, I can't imagine any prison *voluntarily *allowing religiously motivated prisoners to have conjugal visits denied to all others. So what follows is an academic question, but one that could have implications in other contexts: Doug, do you really agree with Eugene that such a permissive accommodation might be *unconstitutional*, simply because it's something that many other persons desire for nonreligious reasons? Many permissive accommodations are not formally or substantively neutral in that sense, but I had thought that unless they (i) do not alleviate a significant state-imposed burden on religious exercise; (ii) impose a meaningful burden on other persons; or (iii) discriminate in the allocation of a constitutionally protected activity such as speech or assembly, they are constitutionally permissible. Since none of those three problems is evidently present here, I'd think a prison could, if it wished, accommodate the Muslim prisoner, no? On Sun, Nov 25, 2012 at 7:16 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > This is a case where the religious claim aligns to closely with self > interest. It would be neither formally nor substantively neutral to allow > this claim, and it would give rise to many false claims of conversion and > perhaps even some genuine conversions. > > On Sun, 25 Nov 2012 15:15:29 -0800 > "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > >In Pouncil v. Tilton, a prisoner is arguing that he is entitled to > conjugal visits under RLUIPA, because "he is a Muslim, that marriage is one > of the most important institutions in Islam and is incumbent on every > Muslim, and that the main duties of a Muslim to his or her spouse are to > consummate their marriage to solidify the validity of the marriage and to > have sexual relations as a form of worship." See > http://www.ca9.uscourts.gov/datastore/opinions/2012/11/21/10-16881.pdf, > which deals only with the statute of limitations issue in the case. But is > it even constitutionally permissible for a prison to give conjugal visits > only to people who feel a religious obligation (or motivation) to have sex > with their spouses, and deny them to those who lack such a felt religious > obligation? I would think that such a policy would create far more > pressure to pretend religious belief than what was seen as > unconstitutionally coercive in Lee v. Weisman, no? > > > >Eugene > > > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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