Incarceration, Accommodation, and Strict Scrutiny

76 Pages Posted: 14 Jan 2009 Last revised: 4 Feb 2010


The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners' chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law. This paper challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a "hard look" at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this paper argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This paper concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

Keywords: Religion, Accommodation, Prison, RLUIPA, Strict Scrutiny

Suggested Citation

Nelson, James David, Incarceration, Accommodation, and Strict Scrutiny. Virginia Law Review, Vol. 95, No. 8, 2009 , Available at SSRN:

James David Nelson (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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