A Different Kind of Prisoner's Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons

26 Pages Posted: 24 Jun 2020

See all articles by Daniel T. Judge

Daniel T. Judge

University of Notre Dame - Notre Dame Law School

Date Written: February 8, 2020

Abstract

How should one understand the right to the free exercise of religion for incarcerated persons? Scholars typically analyze the right to freedom of religion in two distinct ways — either as a constitutional right or as a fundamental human right. And yet, the former should be understood as a positivized protection of the latter. This Note analyzes a prisoner’s right to the free exercise of religion in the context of a prisoner’s right to a preacher and a place to worship. In doing so, it separately analyzes the constitutionally protected right in the United States and the internationally protected human right in the context of the European Court of Human Rights. However, in concluding, it demonstrates that the constitutional right and the international human right are fundamentally one and the same. And, of even greater importance, it shows that the underlying protections owed to incarcerated persons are the same, regardless of the analytical framework.

First, this Note lays the foundation for the constitutional right to freedom of religion in the United States. It explains how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. It also addresses more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs.

Second, this Note addresses the right to freedom of religion internationally. It considers the international right to religious freedom under the Universal Declaration of Human Rights and the European Convention on Human Rights and then discusses recent case precedents in the European Court of Human Rights.

Finally, this Note offers conclusions and recommendations regarding how the right ought to be interpreted and applied both domestically and internationally for the better protection of a prisoner’s right to a preacher and a place to worship. This includes both jurisprudentially in emerging cases such as Holt v. Hobbs II and in the context of international policy through means such as the U.S. State Department’s new Commission on Unalienable Rights.

In sum, this Note argues that international courts, U.S. courts, and well-positioned political and legislative bodies should continue to advance the proper understanding of the right to the free exercise of religion and faithfully apply it to one of the world’s most vulnerable populations — prisoners.

Keywords: Religious freedom, free exercise, First Amendment, European Court of Human Rights, Universal Declaration of Human Rights, human rights

Suggested Citation

Judge, Daniel, A Different Kind of Prisoner's Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons (February 8, 2020). 95 Notre Dame Law Review 2119 (2020), Available at SSRN: https://ssrn.com/abstract=3632289

Daniel Judge (Contact Author)

University of Notre Dame - Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
5
Abstract Views
96
PlumX Metrics