Abstract
Despite meaningful advances in the recognition and protection of fundamental religious freedoms in many parts of the world, certain segments of society usually realize the benefits of social progress only with significant delay. This chapter will consider both the historical challenges and recent advances attained in upholding the religious freedoms and accommodating the sometimes diverse religious practices of individuals in restricted or institutional settings such as prisons, the military, and state-operated medical facilities. While much of the present discussion is primarily based on the experiences of the United States during the past forty years, largely parallel progress has occurred in the democratic societies in western Europe. Clearly the United States is not the only model, and its protections of religious freedom in institutional settings have not always been ideal. Nevertheless, illuminating the US system is particularly valuable. Because it generally takes a separationist and neutral approach in church-state matters, its widespread accommodations in this arena illustrate the need for government flexibility in these circumstances as well as some ways that states can accommodate individuals’ religious needs in institutional settings without discriminating against minority or less-popular religions.
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References
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Barnette v. Rogers, 410 F2d 995 (DC Cir 1969).
Ibid., at 997.
Cruz v. Beto, 445 F2d 801(1971), vacated and remanded, 405 US 319 (1972).
Cruz v. Beto, 405 US 319 (1972).
Procunier v. Martinez, 416 US 396 (1974).
Kahane v. Carlson, 527 F2d 492 (2d Cir 1975).
BOP Program Statement 4746.2.
BOP Operations Memorandum 253–83 (5360).
Turner v. Safley, 482 US 78 (1987).
O’Lone v. Estate of Shabazz, 482 US 342 (1987).
Turner v. Safley, 482 US 78, 89 (1987).
Employment Div., Dept. of Human Resources v. Smith, 494 US 872 (1990).
Note that, in spite of Smith, the Second Circuit in Bass v. Coughlin held that federal courts should still require prisons to provide a prisoner a diet consistent with his religious beliefs (Bass v. Coughlin, 976 F2d 98 [2d Cir 1992] [percuriam]).
Religious Freedom Restoration Act of 1993, 42 USC §§ 2000bb—bb4 (1993).
City of Boerne v. Flores, 521 US 506 (1997).
Ibid., at 534–536. Note that, in any case, many US states have enacted state-level versions of the Religious Freedom Restoration Act.
BOP Program Statement 5360.07 (Religious Beliefs and Practices) (Aug. 25, 1997). Current BOP Program Statements are available online at <www.bop.gov>.
BOP Program Statement 5360.08 (Religious Beliefs and Practices) (May 25, 2001) (rescinding Program Statement 5360.07).
According to the BOP Program Statement, the following religious practices and activities are never authorized: animal sacrifice, casting of spells/curses, nudity, self-mutilation, use or display of weapons, exclusion by race, paramilitary exercises, self-defense training, sexual acts, profanity, consumption of alcohol, ingestion of illegal substances, proselytizing, and encryption (ibid., at ¶[7). “When necessary, Wardens may identify alternative practices and implement the least restrictive alternative consistent with the security and orderly running of Bureau institutions” (ibid.).
Ibid., at ¶ 8. 4° Ibid., at ¶ 18. 41 Ibid., at II 18. 4’28 CFR § 548.15; see also BOP Program Statement 5360.08 14.
BOP Program Statement 5360.08 Q 15.
Seeger v. United States, 380 US 163 (1965).
Welsh v. United States, 398 US 333 (1970).
Department of Defense Directive 1300.6 (Conscientious Objectors) (August 20, 1971), available online at <http://www.dtic.mil/whs/directives/corres/html/13006.htm>.
Ibid., 11[1[4.1, 6.1. But the regulations do prevent those who requested and were denied conscientious objector status before entering military service from requesting the status again based on essentially the same grounds (ibid., II 4.1.1., 4.1.2).
Department of Defense Directive 1300.614.2 (Conscientious Objectors) (August 20, 1971), available online at <http://www.dtic.mil/whs/directives/corres/html/13006.htm>.
For a brief overview of the history of chaplaincy and their current role in the US, see Army Regulation FM16–1 (Religious Support), Introduction (available online at <www.adtdl.army.mil/cgi-bin/atdl.dll/fm/ 16–1/Intro.htm>).
USC §§ 3073, 3581. Chaplaincy has been upheld against legal challenges that it violates the separation of church and state. Katcoffv. Marsh, 755 F2d 223, 225 (2d Cir 1985).
Army Regulation FM16–1, chapter 1.
Department of Defense Directive 1304.19 ¶ 3 (Appointment of Chaplains for Military Service) (September 18, 1993), available online at <http://www.dtic.mil/whs/directives/corres/html/130419.htm>.
Ibid., ¶ 5.2. The organization must also “[p]rovide to the [military] the name, title, mailing address, and telephone number of the designated official authorized to represent the organization to the Military Services”; “[a]gree to abide by all Department of Defense issuances and Military Department regulations and policies on the qualification and endorsement of clergy for service as military chaplains”; and “[a]gree to notify the Department of Defense and the Military Department concerned of any withdrawal of an existing ecclesiastical endorsement” (ibid., 1[1[5.2.1.4–5.2.1.6).
See Administrative Message (Public Affairs Guidance—DOD Policies Regarding Faith Groups in the Military), available online at <134.11.73.3/reserves/policyandnewsletters/faithgroup.htm>.
Goldman v. Weinberger, 475 US 503 (1986).
Department of Defense Directive 1300.17 (Accommodation of Religious Practices Within the Military Services) (Feb. 3, 1988), available online at <http://www.dtic.mil/whs/directives/corres/html/ 130017.htm>.
Abington Township School Dist. v. Schempp, 374 US 203, 226 (1963).
Larson v. Valente, 456 US 228 (1982).
Joint Commission on the Accreditation of Healthcare Organizations, CAMH Update (1999).
Larry VandeCreek et al., “Patient and Family Perceptions of Hospital Chaplains,” Hospital and Health Services Administration, 36:3 (fall 1991): 464.
Larry VandeCreek et al., “How Many Chaplains per 100 Inpatients? Benchmarks of Health Care Chaplaincy Departments,” The Journal of Pastoral Care,55:3 (fall 2001): 295.
VandeCreek, “Patient and Family Perceptions of Hospital Chaplains,” 465. National chaplaincy certification groups include the Association for Clinical Pastoral Education, the National Association of Catholic Chaplains, the College of Chaplains of the American Protestant Health Association, and the National Association of Jewish Chaplains.
See 45 C.F.R. 146.510. The regulations were enacted under the Health Insurance Portability and Accountability Act, Pub. L. No. 104–191, 110 Stat. 1936 (1996).
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Boothby, L. (2004). Protecting Freedom of Religion or Belief in Restricted or Institutional Settings. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_16
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DOI: https://doi.org/10.1007/978-94-017-5616-7_16
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