Lemon test not applicable in prisons?

[Perry Dane]

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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Lemon test not applicable in prisons?

[SIDLEMAN]

I was quite surprised to read the following passage from a recent 
district court case, Salahuddin v. Perez, ___, 2006 WL 266574, at *9 
(S.D.N.Y. Feb. 2, 2006):

When presented with an Establishment Clause claim, a court must ask 
whether the challenged practice (1) has a secular purpose; (2) 
advances or inhibits religion in its principal or primary effect; and 
(3) fosters excessive entanglement between religion and the state. 
Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). "[B]ecause plaintiff 
is a prisoner challenging a Department of Corrections directive, the 
Lemon test is tempered by the test laid out by the Supreme Court in 
Turner v. Safley, which found that a prison regulation that impinges 
on an inmate's constitutional rights is nevertheless valid 'if it is 
reasonably related to legitimate penological interests." ' Warburton, 
2 F.Supp.2d at 316 (citing Turner, 482 U.S. at 89).

The Court need not engage in a determination of whether or not the 
decision to establish the program under Fishkill's chaplaincy and 
academic departments passed the Lemon test, because the undisputed 
facts of record clearly demonstrate that Defendants' decision to 
establish CMP/CHSP under the auspices of the chaplaincy and 
educational departments, rather than under the auspices of Plaintiff's 
proposed inmate organization, was reasonably related to legitimate 
penological interests within the meaning of the Turner standard.
* * *

Does anyone know whether this is a conventional understanding of 
Lemon's applicability in prisons?  Or is it simply wrong?

Thanks.

Scott Idleman
Marquette University

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