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In Praise of Justice Alito’s Statement in Ben-Levi v. Brown


Dawinder Sidhu, Brandeis Blog

March 21, 2016
 

The government’s relationship with religion, if anything, means that the government may not categorically subject a particular religious group to heightened requirements for religious exercise, may not endorse and codify a particular interpretation of religious doctrine, and may not limit the religious exercise of an individual because the government disagrees with the individual’s interpretation of his faith.

In Ben-Levi v. Brown, each of these first principles was violated.  A federal district court and federal appeals court determined nonetheless that the plaintiff’s constitutional and statutory challenges could not go before a jury.  For its part, the Supreme Court of the United States declined review.  Only Associate Justice Samuel Alito, writing for himself, identified the fundamental problems in this case.  In what follows, I will comment on why this case warrants serious concern and Justice Alito significant credit.

The “Ben-Levi” in the case is Israel Ben-Levi, a Jewish inmate housed by the North Carolina Department of Public Safety (DPS).  According to the DPS, inmates may not hold group meetings without prior approval.  In 2012, Ben-Levi sought permission to hold a minyan, or Jewish study group.  The request was submitted to Betty Brown, the DPS Director of Chaplaincy Services.  Brown in turn consulted with a local rabbi by email and, based on this correspondence, determined that a minyan requires at least ten adult Jews or the presence of a rabbi.  As Ben-Levi’s proposed group consisted only of three members and as a volunteer rabbi was not available, Brown denied Ben-Levi’s request.

In general, the First Amendment prevents a prison from substantially burdening the religious exercise of an inmate, unless the prison can demonstrate that the relevant prison policy is “reasonably related to legitimate penological interests.”  The district court ruled that the DPS minyan policy did not infringe upon Ben-Levi’s religious exercise because DPS merely enforced its policy.

That policy, however, embodies DPS’s interpretation of Jewish doctrine.  DPS admitted as such, writing that its “position was based upon its understanding of the basic tenets of the Jewish faith[.]”  But evaluating and determining religious tenets is a solemn function reserved to the individual.  Government is not to arbitrate among, or have veto power over, differing religious perspectives considered by the individual.

Even if DPS believes that its policy contains the correct interpretation of a minyan, the Supreme Court has never insisted upon accuracy or consensus, or otherwise indicated that only a single interpretation may give rise to protected religious exercise.  Rather, the Court has permitted religious exercise to spring forth from a range of religious interpretations, provided that the individual’s interpretation is sincerely held.

Here, there is no basis to dispute the sincerity of Ben-Levi’s view that it would be better to have a Jewish study group of three than no group at all.  As Justice Alito stated, “Ben-Levi believes that relaxing the minyan requirement promotes his faith more than sacrificing group Torah study altogether.”  Similarly, in Holt v. Hobbs, the Supreme Court, in an opinion written by Justice Alito, unanimously recognized the sincerity of a Muslim inmate’s belief that, while Islam required he be completely unshaven, it is preferable to grow a 1/2-inch beard than to have no beard as mandated by the prison’s grooming policies.  For Ben-Levi, the district court wrongly focused on the DPS policy and not, as Justice Alito pointed out, whether the DPS “policy imposed a substantial burden on Ben-Levi’s ability to exercise his religious beliefs, as he understands them.”

In this case, the denial of the request to hold a Jewish study group prevented Ben-Levi from exercising his faith as he sincerely interpreted it.

The district court also concluded that, in the absence of a minyan, Ben-Levi could have engaged in private or corporate worship.  It is no answer that Ben-Levi may have had other ways to practice his faith; the law does not give the government an “alternative means” safe harbor or permit the government to cherry-pick how an inmate can pursue his religion.  The relevant question is whether DSP burdened this particular means of religious expression.  Brown’s denial of Ben-Levi’s request settles this threshold question.

Next, DPS stated that, assuming that it substantially burdened Ben-Levi’s faith, that the policy was nonetheless supported by several interests.  Brown herself declared that group gatherings “can compromise order, security, operation, safety, and inmate relationships in the prison system,” and can operate as a cover for “gang activity.”  But, as courts nationwide and the Supreme Court in Holt have pointed out, prisons may not rely on generalized, conclusory justifications for their policies.  Instead, courts are to assess whether the inmate has given rise to penological concerns justifying the relevant policy.

Here, there is nothing to suggest that Ben-Levi has undermined prison security or is affiliated with a gang. “Nor is there any indication that a Jewish study group is more likely… to impede order, compromise inmate relationships, or absorb personnel resources,” Justice Alito noted.  Accordingly, there is no basis for holding Ben-Levi or Jewish inmates as a whole to a standard — ten members or a volunteer religious leader present — that is not imposed on other religious groups seeking group study.

In the end, Ben-Levi’s case is troubling because the DPS strayed from corrections to theology.  In doing so, DPS deprived Ben-Levi of his religious rights and, more broadly, breached otherwise central principles concerning the role of government in religious affairs, principles that still exist within prison walls.  The injury to Ben-Levi and these principles is doubled by the fact that the lower courts did not permit a jury to weigh the parties’ assertions; the courts found the issues too clear to warrant jury involvement.  Justice Alito should be commended for being the lone Justice to recognize the problematic conclusions reached by the courts below and for signaling to future judges that such deprivations of religious freedom in the prison context will not go unnoticed.

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David E. Bernstein
David E. Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995, interspersed with visiting appointments at the Georgetown, Michigan, and Brooklyn law schools.
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