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Monica, Alison, Liz, and Rebecca discuss religious liberty issues in our jails and prisons. From court-ordered AA to coercive prayer meetings to forming atheist and humanist groups in prisons, there are plenty of ways the separation of church and state affects this vulnerable population.
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Rebecca Markert: Welcome to We Dissent, the podcast with four secular women attorneys discussing religious liberty in federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with the Freedom From Religion Foundation.
Liz Cavell: And I'm Liz Cavell, Associate Counsel at FFRF.
Alison Gill: I'm Alison Gill, Vice President for Legal and Policy with American Atheists.
Monica Miller: And I'm Monica Miller, the legal director and senior counsel at the American Humanist Association. And in this episode we're gonna be discussing church state separation issues that impact our prisons. There are many ways that this comes up for us, but I just wanna sort of punch it over broadly and ask my fellow co-host how has our work intersected with prisoner rights and criminal justice issues?
Liz Cavell: So this is so interesting and we touched on this a little bit back in our episode on death penalty cases way back in episode four, but you'll probably remember us saying that this is a little bit outside of our day in day out work on church state separation issues. It's not a context that we work in super often, but it does come up in a lot of ways. Establishment Clause issues related to preferential treatment for Christian inmates comes up more often than most people realize, I think in our prisons. And so at least at the Freedom From Religion Foundation, we do receive pretty regular complaints from people who are incarcerated who are either being discriminated against as a minority religion or just as an atheist or humanist or they're not being given equal access to some of the privileges or services that are available to religious inmates. So for example, being able to form fellowship groups or meetup groups that's readily accessible to Christian inmates, but sometimes atheist or humanist inmates who are trying to form similar community and get access to similar meetup times and resources are being denied usually for no reason, just on a discriminatory basis. So that comes up an awful lot I think with prisoner complaints.
Rebecca Markert: And another thing that we always hear about at FFRF with regards to access to resources like Liz was talking about, we get a lot of prisoners who write to us because they don't have any literature in the prison libraries that reference atheism or freethought or any sort of non-believing type literature that they want to study. Also at FFRF we hear from prisoners who do not have access to our monthly paper Freethought Today. Somehow that gets taken out of the mail circulation and we have to talk to the prisons to figure out why people who are incarcerated are not getting access to their mail.
Monica Miller: Yes, yes. That's a really good point, Rebecca. When I was thinking about the subjects to talk about today, I had coercion in mind. I had free exercise, I had equal protection, I had equal access, which sometimes does touch on free speech and viewpoint discrimination, but I really didn't have that pure free speech kind of issue at the top of my head. That comes up recurringly in our groups. And we also have had a lot of just pure free speech issues with censorship of our humanist magazine and like nude photos or like, but they, they'll call, it'll fall under like their nude situation and it'll be a picture of like Adam and Eve. It just, it, it goes to the breadth of how prisons intersect with our work in many facets.
Alison Gill: For us this mostly impacts our work with regard to access to substance use services or mandatory substance use services by the courts or by judges both in prisons and outside through court ordered substance abuse treatment through diversion programs. And that also impacts our, I would say our state legislative activity too because we introduced, for example and I think past a bill in New York that has to do with this issue. We're actually exploring a case right now in West Virginia where we might move forward with a prisoner who for example, was forced to undergo a 12 Step Program or would count against him for parole purposes. So that's a good example.
Monica Miller: Yeah, absolutely. That's probably our, the top line issue that comes up for us in the prisons that I've had since my tenure starting at AHA, was getting inmates contacting us saying I have to go to 12 Steps. I have to go to AA, I represented a doctor outside of the prison context whose, you know, license was gonna be revoked because of that. But it's a very recurring issue and it's one that I want us to do a deeper dive later in the episode on because coercion was at the forefront of one of the Supreme Court's latest cases as we know the Coach Kennedy football prayer case that we did a prior episode on. But I'd like to get your take on the impact of that decision is going to be on all these prisoners and whether you know, what amounts to coercion can you force a wide population of our country who have very little control over their day to day activities and whose liberty is literally a stake. Can you compel them to do religious programming as a condition of getting out and what is that considered direct enough type of coercion? So I would love to get into the weeds of that cause I think it does affect real people. You know, brothers, sisters, everyone sort of knows someone that's probably been through a 12 Step Program. We can talk a little bit too about like why that's considered religious and maybe some of the other programs that we've seen come across our various desks that look or feel like a religious program but might be couched in some other secular language only for the person to realize it's completely non-scientific, bogus therapeutic help that they're getting. And also just sort of why that doesn't really help, you know, the overarching goals of prison reformers.
Liz Cavell: There's so much to unpack in these criminal justice topics. That's why I'm really glad we're having a conversation about this. But there's like so many facets to go down just to stick with the court-ordered AA and kind of dive into that a little bit as like a case study in how this intersects with religion issues and all of the attendant fallout. So AA just as–
Alison Gill: Wait, wait, wait. I have to intrude cause we're American Atheists, by AA you mean Alcoholics Anonymous just to be or Narcotics Anonymous or any of their 12 Steps or so called programs
Liz Cavell: You're right, I shouldn't use AA, it's the trade name and also court ordered American Atheist is just a dream still for us. No, so by, by which I refer to AA by which I mean a 12 Step Program, Alcoholics Anonymous is certainly the most infamous and courts actually at least up until this point in time have pretty roundly agreed that Alcoholics Anonymous and all of its ilk and cousins and Narcotics Anonymous et cetera are actually religious programming. And I don't know which of us feels the most like familiar with the AA background but uh, as to like why that is cuz that I feel like 12 Step Programs have done a really good job sort of whitewashing their programming for the broader culture and just having it be so readily accepted in our culture that AA is like this integral part of substance use recovery. And that it's somehow secular and accessible to everyone when the reality is a really big component of the 12 Step Programs and sort of the philosophy that underides the 12 Step Programs and their founding is very, very religious and explicitly religious and sectarian. I think that what they try to say to sort of push back against this argument is that well there's like higher power argument or there's higher power sort of philosophy.
Monica Miller: Economical higher power that you can just accept the chair as your higher power. You can say anything is your higher power.
Liz Cavell: But that's all just like real litigation posturing bs. Because the reality is if you ever, I can't remember like what the document is and maybe Rebecca, you remember they have this whole 12 Step Program sort of document, it's like a philosophy.
Alison Gill: This is the Big Book, right?
Liz Cavell: Yes, yes. Right?
Alison Gill: Yeah. And they actually talk about atheists and they can't become something like, or agnostics that they can't become sober unless they buy into the whole 12 Steps, I think four or five of which explicitly talk about a higher power God or religion.
Monica Miller: Accepting that there's a power greater than yourself is the overarching premise. And I think for us, you know, with the humanist movement, humanism generally we use science. And so to me it's less even about the words God and God and you know, like accepting this. It's like you're setting aside science and you're saying I am this diseased person. There's something greater than me and it's this power, right? It's not a thing, it's this power. And I am just completely helpless as a human. And we're saying no there's science. And it's not to say there's, there's one way to look at addiction, but you're absolutely correct that the Big Book is what augments this, it colors what they mean when they say a higher power. A lot of the litigants in these cases are actually Buddhist and folks that have a less atheistic, you know, rigid atheist approach.They might still be able to say like nature is my higher power. But even those folks are like, this is not that you are saying that like there is a, there is a being that is higher than me and I have to accept that. And this being we surrender ourselves too. Like that is very theistic. That is very monotheistic. And the courts as you were saying Liz, is that they've been really in accord with that. That has not been the sticking point in the cases. Often the sticking point is whether there was coercion or was this inmate really forced to go to the program but they have not had any serious debate over whether the 12 Step Programs that are Alcoholics Anonymous and Narcotics Anonymous are grounded in religion.
Liz Cavell: And so the way that this comes up in terms of the coercive power of either the prison system or it's a component of incarceration is the 12 Step Programs and NA and AA have this stranglehold on the criminal justice system somehow from somewhere back in the day when they became just the only game in town for substance use recovery before I think we really understood substance use disorder as society. So judges are very much in the habit for decades and decades of ordering attendance at 12 Step meetings as a condition of bond, parole, probation, or just upon release after incarceration. So I mean there's all kinds of strings attached to incarcerated people or probationers or parolees freedom that depends on attendance at these meetings. And so oftentimes you have people attending the meetings and being like, oh my goodness, like this is a really religious, this is a really religious thing.
Monica Miller: Yeah and they don't know because it's called 12 Steps. Right, exactly. It sounds so mainstream like what you were saying Liz, it sounds like it's just this, you go to your standard 12 Steps in reality there's a lot of other ways to deal with substance abuse and we're not knocking it. If it works for you, do what works for you, but you can't have the court ordering you into a monotheistic religious based program that's anti-scientific. And when there's therapy and cognitive behavioral therapy and other things that could be done, it could be suggested. But we get the complaints where it's not suggested. Where it's my son's in prison and can't get out because he refuses to go to a 12 Step Program. So like it very much offends me as a humanist that judges across the country are thinking that that's really the results oriented way to solve this problem. It it seems more just like a rubber stamp. Do your 12 Steps and get out there, tell yourself you're diseased and that there's a higher power.
Alison Gill: These are often paired with explicit religious activity too. Like we've had clients that are part of a 12 Step Program and it's part of that they're required to actually undergo Christian prayer or attend prayer activities. And some of those actively denigrate non-religious people, like they had a client that was subject to that repeatedly and they couldn't opt out of it because they're ordered by the court to be there. Which brings us to another point, these people are very vulnerable. If you are in a position where the courts ordering you to attend these meetings or you're gonna go to jail if it's a diversion program or you could have much more serious consequences or you're already in prison where your rights are already so restricted. It's a hard time to fight back. Right. So that can be really, really challenging.
Rebecca Markert: To Alison's point about just the fact that this is a very vulnerable population, when we're looking at people who actually are incarcerated and living within the prison system, I mean there are so much religion that happens in the risen system because they have chaplains, they have religious organizations and groups that go to proselytize specifically to prisoners and there's nowhere to go. Sometimes they have these bible readings that occur in one person's cell and the entire cell block has to listen to it whether you want to or not. So they're really being forced to listen to this indoctrination. There was actually a case a couple of years ago that FFRF got involved in out of Kentucky and I wanted to just touch on it a little bit. We ended up suing over this situation, but it was on an open records violation and not the actual event that occurred because we were trying to find out more about the event, which turned out to be just a one time thing. The situation was in Laurel County, Kentucky, the Laurel County Correctional Center in London, Kentucky hosted a night of prayer. They said that this was under the guise of combating substance abuse and drug problems in the county. But the jailer organized this event where there was a huge tent that was erected on the jail grounds and they invited people from outside of the prison. So the community members and churches all came in. There were 600 people that came to this event which really resembled a revival. And then the inmates from the jail were handcuffed and escorted with guards to the inside of the tent where, you know, they were engaging in religious services, they were praying over them and praying with them. The members of the community went inside the jail and created a prayer chain and it was insanity and everybody was forced to go. And that's the type of situations, I mean that might have been a pretty extreme example but we have other complaints that our organizations have received where people are just subjected to this religion because there's also this ethos in our society that they're in prison, they need God.
Monica Miller: Right. Standing back doctrinally, and we touched a little bit of this on our episode about the death row cases, but we are dealing with a different situation in the public schools because we're dealing with a closed circuit environment where they're not able to get out. And so we all recognize as separation of church and state advocates and as litigators that there is a place for religion, you know, within our constitution in the prisons like of course they can have prison chaplains because they can't take themselves out of the prison to go to their church. And our American tradition recognizes the right to practice your religion. So we have no moral or constitutional objection to say prison chaplains, but where the law says this is not allowed is when you start playing favorites or when you start forcing one group to go into another group's religion and that's where the friction comes up and that's where kind of constitutionally we get involved. And so when we talk about coercion, we've talked about this a lot on prior episodes when it comes to the public schools and does it mean indirect coercion like when a coach prays on a 50 yard line and you know he's been doing this for, for say years and his team is familiar with that but say he Steps out and is just doing it on his own. You know, is that considered coercive now under Supreme Court precedent when it comes to the prisons and individuals are literally forced behind bars and have no way of going to church through the government supplying that to them. Will the Supreme Court tinker with this very settled notion that going forcing an inmate of one religion say or or no religion in our cases, compelling them to go to a 12 Step Program that looks not like Jesus, you know on its face, doesn't say Jesus it says higher power. You know, something that looks like, as Liz was saying, kind of benign with the Supreme Court, this current Supreme Court kind of tinker with that and say yes, that this is a public good and we should have people going to this. Or do we think this is just not on this Supreme Court's radar and we should just not even think about worrying about this yet?
Alison Gill: Basically what happened in the Kennedy v Bremerton has upended a lot of what we thought about the standards for how the Establishment Clause is applied. We have this new historical practices understandings test, we don't know what it means. And we talked about this a little bit and we were discussing Kenny v. Bremerton, the Supreme Court said that coercion is still covered but then they also said that what the coach Kenny did was not coercive right. Or was not coercive enough. So it was sort of an indirect coercion. So what does coercion really mean exactly And like honestly there's a lot of history of religious coercion in our country. So if we're looking at historical practices and understandings then I think it's an open question what the courts are going to do. But I don't know, it's something that's, that we could certainly see pushback on when we try to bring these cases anew from different governments.
Monica Miller: In the prison context with this com Supreme Court and this new way of conservatism is what kind of big religious corporate pockets can benefit from the prisoners and these programs. Cuz we've seen other cases where it's not a 12 Step Program, it'll be some capstone kind of sounding program like the, I don't know, foundations course or something, and it'll be something just generic sounding. But then you flip the pages through the literature and it becomes like some Bob Jones from Texas Big Megachurch just like I think that there we're gonna see more interesting funding cases. I remember an inter one coming out of the Eighth Circuit Court of Appeals a prison funding a giving a lot of funds diverting state funds to a big religious third party for this kind of like treatment programs. I don't see the Supreme Court really worrying as much about coercing folks into AA or not. I think that's sort of small potatoes. I think where we'll see some bigger problems is at the mega kind of church level.
Rebecca Markert: But I think the small potatoes is where it all starts, right? I mean because when we first started at our organizations, did we ever think we'd end up here just what we were talking about at the top of this episode where AA has become such a fabric of our community. I mean people know what it is, no offense Alison, but people automatically go to Alcoholics Anonymous and not American Atheists when you say I'm working with AA–
Monica Miller: Going to an AA meeting, an AA conference!
Rebecca Markert: It's reflected in our movies and TV shows and things like that that I could really see this Supreme Court glomming onto that and just saying, you know what started out as really sort of a religious program has become so secularized and it's been around since the 1930s, we have a strong tradition in our country of sending people to Alcoholics Anonymous in 12 Step Programs and they've gone through them whether they're Christian or not and people have benefited from it. And here we will like trot out the like five people that we know who say like, I was not religious or I'm Jewish or I'm Muslim and I did 12 Steps and it worked for me and I just ignored that stuff and went there is AA just becoming the new Christmas for like the courts, I don't know.
Alison Gill: Or the 40 foot high cross that's no longer religious, is that what it is?
Monica Miller: Atheist and humanist and Jewish people like. I wanted to to jump over into all things equal access, discrimination and equality cuz that's the big ticket item at least where we get the vast majority of our complaints from. And that's really where most of my litigation in the prisons has stemmed from is getting individuals who are humanist that are in the prisons and they innocently wanted to start up a humanist meaning and they looked at the roster of religious groups that are available. And to Rebecca's point earlier, just there's not even literature in the prisons about humanism or atheism or you know, you could find a lot on the Quran and and the Bible cuz they give out bibles. We try to give our literature out and we get these free ex free speech violations like, oh you have a picture of Adam and Evil on the cover and Eva is naked. And it's like, wait, that's why you're rejecting our magazine, like our humanist magazine. So I have this inmate who comes to us in 2014 or 2013, right, you know, kind of a baby lawyer then. And he's in Oregon federal prison and he's tried to start a humanist group at his federal prison. He was very into humanism and I was like, why would they let him have a humanist group? There were all these obscure religions like Odinism and East Norwegian, ancient Irish religions that don't exist outside of the prisons, but like they were recognizing all of this stuff and he was having all this backlash. Humanism isn't a religion, and this was the federal prison but based out of Oregon, so not a state prison. And so we sued under the principle and relying on a 1960s case that the Supreme Court had issued, not relating to prisons but just to relating to the notion of what secular humanism is. And it said that for the First Amendment purpose, we treat secular humanism as the same as a religion when it comes to playing favorites. And that is tethered to the Establishment Clause itself. You know that the government has to be neutral and secular and it can't prefer religion over non-religion. So it's a very basic idea. It's not to say that humanism is a religion, like we don't go to church, we don't believe in higher things, but constitutionally cannot be treated differently. So I brought both equal protection clause and Establishment Clause claims because the discrimination of not allowing a humanist group to meet on the same terms as Buddhist and Rastafarians and Christians and Muslims just because they don't believe in a God. But they would have discussions about philosophy and non-religion and, and the importance of evolution and how we have environmental responsibilities and we have to be good stewards of the land and whatever the things were were no less important than what the Odinists and the Rastafarians and the Sabbatarians wanted to talk about. So, you know, it was, it was a a first case of its kind I think from the standpoint of federal court cases and trying to seek a humanist group in the prisons as a younger lawyer, I was a little more ambitious when we got to the settlement point and I really wanted all the federal prisons to recognize humanism as a religion, not just this one Oregon federal prison. After months and months of negotiating with the Federal Bureau of Prisons, it turned out why this was so difficult was it was kind of a computer issue and like the federal prisons have such like a clunky coding system that adding humanism to the database was really technically complicated. But once we worked that out, now every single federal prison in the United States as a result of our consent decree and it, we didn't just do a settlement, we have a binding consent decree that means that it's enforceable and it's on the record that every federal prison has to recognize humanism when all the small requirements are met. Like say you have to have two or more members if that's what that prison is and that they have to recognize humanist holidays on par with secular ones. So I don't know if Darwin Day would be one, but like Human Light is like a sort of Christmas holiday where, you know, whatever–
Liz Cavell:Monica Miller's birthdays, stuff like that-
All: (Laughs)
Alison Gill: Well actually I have a question about that Monica because you raise a good point. Like humanism I think is, I don't know, isn't it sort of like a non-theistic religion compared to like, I don't know, skepticism, atheism, agnosticism, you know what I mean? It's like it's some word of Buddhism or like
Monica Miller: Yeah, absolutely
Alison Gill: Uh, satanism in that way. And for that reason, does this mean that humanists now have more rights than atheists or like agnostics or skeptics?
Monica Miller: I see what you're saying and I understand what you're saying and I would say no. And the reason is the Seventh Circuit had a really good case brought by just one inmate. I don't think he was connected with our groups, but he was seeking an umbrella atheist group. And the Seventh Circuit Court of Appeals said that if the prison recognizes umbrella groups like a Christian umbrella group, so there's like, you know, Seventh Day Adventist and Mormons and and Catholics. But if they have just Christian umbrella and they had a Muslim umbrella and they had subsects and they had a Jewish umbrella and subsects then they could have an atheist umbrella group and have it be humanist and atheist and, and again doctrinally the, the line of cases we've got equal protection where I think is where I really won my humanist specific claim. But I am super careful to be like, we do not need to be like a religion. We do fit this, which makes it more egregious. So I ended up winning some other cases down the road using this precedent. But like in North Carolina, I had a super conservative federal judge, this was state prison now cuz all the federal prisons are covered under this injunction, but now we still to deal state by state with the each of those that have that refuse and they'll refuse us on the basis of "oh you don't have a national headquarters or like, you don't have a like a church here," but you ke nor nor does the Rastafarians. Like everything that they pointed to, we had something close like the AHA headquarters, we have our magazine, we have the humanist manifesto. So to your point Alison, we actually have a lot of things that look like religion and there's a lot of divide within the humanist kind of outside the legal world. Because all of us lawyers know, like treated like a religion is very different than saying we are. But the other side of it is the Establishment Clause, which is you can't treat religion differently from non-religion. And so when it comes to study group meetings, which is what we were seeking, you know, use of the chapel for an hour a week, um, to study and discuss humanism on the same terms as others. Like there's nothing about that activity that's confined to being, you know, a Mormon or to being a Muslim when it comes to, we wanna use the church to just like hang out and use and do some fake like ceremony. We don't have any proof we need this ceremony. Like that's the free exercise clause kind of stuff that we're like, we don't really have that parallel. We're not actually asking for everything that the other groups have. We just want this one thing we wanted a locker. So like in our federal injunction we got the humanist get to have a locker, they get to have the same number of books in their dorm rooms like, or their, their dorm rooms, their cells. I'm trying to make this sound less awful. There's a lot of sub issues that come with recognition of a faith group. So, that would apply to atheism broadly. Like there are plenty of books about atheism that are on par with having a Bible. So, um, yes, I don't, I I know what you're, you're saying and I think that the same, but I would be more concerned now in this new era of Supreme Court and lower federal courts being emboldened that walking in with it with a pure atheist case in this realm. I don't know if I would do that. I think I'm–
Alison Gill: Or Establishment Clause case. It might be better to figure out if we can use the free exercise clause a little bit more strongly here. Right. Is that something?
Monica Miller: Well that, that actually leads me to another point. I was hoping we could kind of pivot back to talking about where we see the role of free exercise for our own claims and the RLUIPA and RFRA type of claims.
Liz Cavell: I think we like disclaimed this back in our death row episode. Most or all of our orgs have not typically pursued litigation under our lupa, which is the world's worst acronym. It is RLUIPA and it stands for the Religious Land Use and Institutionalized Persons Act. But it's a statute, so it's a federal statute that it does a few things, but among them have to do with burdening the free exercise rights of prisoners. So it's similar to the free exercise clause, but it's a statutory authority. It's a law passed by Congress prohibiting the government from burdening the ability of prisoners to worship and do their religious free exercise. There's also a land use component to the law that doesn't involve our purposes in this episode, but also has to do with basically religious groups avoiding zoning restrictions for the use of their property for religious purposes. But, the religious institutionalized person's portion is kind of what we're concerned with here. And there have been many federal cases taken in the courts under this statute where prisoners have argued that their religious rights are being violated under this law. It theoretically presents an avenue for our groups to pursue litigation for our own clients. And this is kind of what Monica's saying, like what are the tools that we have to take these prisoner kind of free exercise clauses that might be sort of novel or something different that we can do that is more useful in the current climate under these courts.
Monica Miller: That's right, exactly. And so I've either had folks in two camps, one is just seeing other complaints and working with say a local counsel and they'll, they wanna throw in RLUIPA and free exercise clause claims to any sort of religious case like this and judges are almost expecting to see it. And so if you read these prisoner cases of any religion trying to seek equal access, it's almost like the, the courts have this like checklist of how they handle these. They go they Establishment Clause free exercise, equal protection, RLUIPA, RFRA. And there have been atheists prisoners that have tried to bring RLUIPA, RFRA claims either to force coercion, you know, religious treatment or to study groups. But the courts have made clear and it's very hard to refute this, and I don't refute this, that atheism is not a religion and that atheism doesn't have a practice of religion. I can see why with humanists though, that's where I, that's where folks say, Oh but humanism is so like religion, why wouldn't you use this tool that's at your disposal? The RLUIPA and RFRA trigger strict scrutiny whereas equal protection should trigger strict scrutiny for religious issues. But interestingly in the federal court, Oregon said, we don't even have to to reach that cuz this violates rational basis this, what they did was so discriminatory to you. And then actually is what my North Carolina federal judge said, um, the pretext, what they put my client Kwame Teague through just to get his form filed. They were like, you didn't make all these other religious groups do X, Y, and Z. So I was just loving how much my judge saw that this was like failing rational basis level discrimination. But at the same time I was hoping he would rubber stamp the notion that strict scrutiny applies to a humanist atheist discrimination just as much as it does Christian discrimination. But we wouldn't want to expand that RFRA, RLUIPA bubble because that is the weapon that's being used in all these other cases we talk about in our other episodes.
Alison Gill: It's interesting this point about RLUIPA and how the courts have not accepted claims from atheist because that really brings into question how appropriate like RLUIPA, RFRA are as laws because they really are favoring obviously religion over non-religion, which is a problem. And it also means that only the religious people have the ability to sort of bring these claims. And it's a real problem because the courts and congress have really been closing off methods of access and challenging these different avenues when the government oversteps, whether it's in prisons or outside of prisons. So when only religious people can bring claims and atheists and humanists are not recognized as having, even if their beliefs are really being impinged, they don't really, really have valid avenue there. Then I think that some real Establishment Clause issues, but the courts have not been very accepting of that argument unfortunately. What's something we have to keep pushing on?
Monica Miller: You hit the nail on the head and I wish I could remember who wrote this and, and I'm gonna say it wrong, but it was like the dissenting opinion in the RFRA case and it was something about like this gives the Christians a weapon that no atheist or agnostic could obtain. It was something to that effect. If you interpret RFRA to say that atheists cannot benefit and and have equal access, then you're saying that this is, you're giving them something that is so clearly unequal. What? But anyway, it, you're absolutely right Alison. The dynamic between RFRA and RLUIPA and then you go into Establishment Clause jurisprudence is just, it's so diametrically opposed. Like you've got this like low level non-deference to anything that Establishment Clause plaintiffs say, do government gets all the deference in the world. And the second a Christian complains not even like proof that something has happened, it's like this is discriminatory, this is absolutely like, like strict scrutiny applies. There is no deference gonna be given to this government. They are just, this is like, let's look deep into the record and find that one footnote where at this committee meeting someone alluded to maybe the Christians being bad, they will dig for something to, to hang onto to find discrimination is a very different landscape right now. And I'm, I'm so worried that these margins that we were able to win at when I was not actually sure if we would win now I'm just like, would we even bother bringing a case in North Carolina for this kind of situation? I mean I think so, my feeling is that equal protection and equal access and the doubly protected now religious speech we've got our first First Amendment, like if our magazines get bumped again, I think case law wise we have maybe even more support, but we don't have the judges.
Alison Gill: I don't wanna support that precedent either the religious or religiously motivated speeches double support.
Monica Miller: Exactly right.
Alison Gill: That was a bunch of crap. And I, I <laugh>
Monica Miller: That's kind of what I'm getting at is like, is this precedent like say where Humanist magazine gets shoved out the window again and it's something that's pretextual and we can prove that they've allowed the exact same thing in, but it was, it said Christian on the on the top instead of humanist. Like do I lean on that doubly religious, you know, do I say humanism is a religion and you know it is now doubly protected. Like do we think that's successful or do we think they'll just find a like, oh no you, you believe in nothing and therefore it all that precedent only applies to the Christians. Like how bold are and explicit will they get with their favoritism.
Liz Cavell: Because it used to be that, and by used to be, I mean 10 years ago, it used to be this sort of hinge of analysis was does the, if it's not traditional or theistic does it hold the place in the person's life that like a traditional religious belief would. Right? And so secular humanism fits into that but other things have been held by the courts to fit into that framework like pacifism, you know, conscientious objection to war draft and stuff like that as being principled beliefs that are not grounded in the supernatural or theism but that are so central to a person's life and values that they hold the place that religious beliefs would in the religious person's life. And that I think makes logical sense to people, right? Like that's easy to understand and also fair and that is a really logical way to sort of evaluate how and when courts, I mean as good a way as you, you can get to evaluate whether or not acts based on beliefs should be protected. Yeah. Under the free exercise clause or a statutory version of, of religious protection. And now, I mean imagine saying that to like Justice Alito.
Monica Miller: Right? No exactly.
Liz Cavell: Just picture his like angry furrowed, sweaty face
Monica Miller:His crunched face <laugh>.I know. I can't, I know but you're raising a good point. If the court system didn't go that direction, I think um, you know, I think we would see more, I wouldn't say like fringe groups but like groups that are less um, serious like Pastafarians. We know the Pastafarians have tried these cases and that's actually where the, I that might have even been where we started our thought experiment was like the Pastafarian, cuz it's like we know it's a satire religion and so when the courts have sort of distinguished Pastafarians from humanists, um, or you know, from um, I'm trying to think like Unitarians or um, some other sort of like broader Christian type of like non-denominational kind of thing. Like they, they end up just saying it's like it's a mockery. Only real religions can, but you start to go what's a real religion and all of it's fuzzy.
Alison Gill: Well they talk about sincere religious belief but then you realize in so many of these modern cases the sincere religious beliefs are exactly tailored to what they need to be in order to win these cases. So like exactly he has to pray exactly at the 50 yard lie. Not one Step off has to be exactly after the game ends. You can't wait five minutes gotta be right then. I mean come on. That's crazy.
Monica Miller: Exactly. But they're a allowed to say that like with a straight face and we can't say like, oh but he, they really wanna have their Darwin Day and in order to wi like in order to almost maybe win in this future context, it's gonna be like we're gonna have to materialize these things a little bit more maybe.
Alison Gill: The other point I'm curious about, given the recent development in the courts is the courts have been really more actively looking at religious, anti-religious animists or hostility. We talked about how there's maybe the courts have been sort of skeptical about a angle of atheists and non-religious people using RFRA RLUIPA to pursue a claim. But like if there's evidence, another way free exercise comes into play is if there's evidence of hostility against that belief system. And so I mean that seems like it's an avenue that's definitely worth pursuing in the prisons as well And I'm curious if there's been sort of development there that's worth noting.
Monica Miller: Yeah, I mean I would say like going back to my North Carolina case as an exemplar because my Ninth Circuit Case, like I had the judges on my side, we just had like a mootness issue. They were so passed like whether humanism should be treated as an equal but like in North Carolina that wasn't as established but we got that animus through because we showed the difference of the forms. Just like the treatment. Like why did he have to submit this extra thing? Why did this process take six months but the other groups didn't. And so for other attorneys out there may be confronted with these things, making sure that you have enough of a record of comparison cuz that's really where animus shines through the most.
Rebecca Markert: They're inherently treated differently even upon the intake process. Right. You were talking earlier Monica that humanism wasn't even an option and there's countless examples of that where atheism is not listed as an option. A lot of these prison systems don't even keep track of that. In the Kaufman case that you had mentioned earlier from the Seventh Circuit where an atheist wanted to have an atheist study group, he actually ended up having a second case because he was transferred to a different prison, wanted to have an atheism group at that prison and was denied. It went all the way up to the seventh circuit again where the Seventh Circuit again rolled in his favor. But part of that case they talked about how he had to write in that he was an atheist and then in this system it was just kind of thrown into the, this larger umbrella term like no preference. And so they had no idea how many atheists were even in the prisons because they're not keeping track. And the court rightfully said, you can't even deny him his group based on how many people he'd bring because you don't even know how many atheists or agnostics or anybody else's in your prison cuz you've lumped them all together. And there was a really good quote about how they basically said, this is akin to like telling someone you can just run as a write in candidate. There's cold comfort in that because nobody's actually paying attention to that. So I just feel like there's like, they're being treated differently at the outset in animus is inherent and I'm not sure if us taking it and saying, Hey, there is animus towards atheists and agnostics and humanists and whoever else. I don't know if these courts would actually see that as animus or not.
Monica Miller: Yeah. Well I did make a point with my federal injunction, you know, the nationwide injunction was to make it clear that humanism is an option when you come in and it's on the form. So it's like, oh, so, because I imagine these folks that don't come in and I'm, I keep saying Odinism is, but there was like a lot of these religions that you just don't see at your like local, you know, like your, your yellow pages. Like they're not, and I'm not trying to denigrate any anyone religion. I think some of these actually are white supremacist groups in disguise, which is what bothered me the most about my clients just wanting to, you know, gather and talk about how to better the world without, without religion or without theism. And you've got these pseudo like Nazi groups meeting and like trading weird little like gongs. They had all these Harry Potter like things that they were allowed to keep in their locker, but he couldn't have a copy of one of our books. So it's at the outset. And um, we really wanted everyone to know what humanism was and to have those resources within each prison. So we had them post the like injunction order, like on the prison chap, like the chaplain wall for like the first year or something. We were very detailed because I really wanted it to be clear to people coming in that this was an option and not just like circle the the weird new religion that you just see that sounds fun. And because you have to look at this too from the lens of this is an hour break for folks to get out of their self. I might become a Muslim if I was stuck in, you know, I gotta go into do some ceremonies and stuff and eat some crackers. Like cool, I'm a I'm a Muslim today. And that's another thing too is these signup sheet, the prison, to their credit, a lot of people do try to, to manipulate the system to go to these kind of things. So there is a little bit of a balance. If that was, that was the point I was getting at actually was that we had them add humanism to the, not just like the circle, but like what is humanism, how to contact the AHA if they refuse you, who to contact. Like that's all in the Federal Bureau of Prison Management Religious Practices program. So like humanism is now embedded in that. And so I've taken that to all these other states that I've brought cases in. Most recently we've been working with South Carolina and hopefully we'll have a victory to report soon in that state. But we're just like, look, the federal prison recognized it. There's no legwork for you to do. We have done the legwork. You just throw this into your PDFs and let the prisoners pick the humanism. But I think our organizations, frankly our chapters, this is on our national groups to liaise some of this. But we really should be, I think way more, proactive like our Christian and Muslim counterparts in getting our literature into those. I know we do it usually upon request when inmates ask us for stuff and I would love for us to do some more of that.
Rebecca Markert: A few years ago I was actually invited to speak at the women's prison here in Wisconsin and Taycheedah, it's one of the largest women's prisons in the state and they have a a freethought group that formed and when you were talking about I'd sign up because like it'll get me out, you know, in a freer space for over an hour. And I wasn't sure what I was going to expect when I was walking into it but it was a pretty large group. I mean I would say there were like 15 women there. And they were really engaged and obviously very interested and I brought in all sorts of resources. I had copies of our paper Freethought today and other brochures and things like that to hand out and everybody took something. But we had a really good discussion and then we were getting near time, it was like an hour was coming up upon us and we're like, are there any more questions? And everybody raised their hand and we ended up staying like a few more minutes and the prison chaplain was actually his supervisor for this group. He was like, Okay, we are gonna do two more questions but then everybody has to get back. But just in terms of being more proactive, I mean we can go and talk to these groups and serve as speakers and bring the resources directly to them. And so I think that's a great idea. And it was actually a lot of fun to do.
Monica Miller: I think a lot of folks that enter the legal field have some sort of introduction to it through like criminal law or like an interest in the, in reforming the criminal justice system. And then they kind of get, you know, sidetracked by their big fancy law careers that, you know, we, we didn't fall victim to. But you know, one of the classes that I took at my liberal arts college, Pitzer College, um, I think my, I ended up doing it an extra semester just for fun cuz that's who I am. But it was, like was, it was called Teaching in the Prisons and we went up to a like juvenile detention place in Los Angeles. So the boys were there that were like hard criminals but like they were still underage and most of them, it really gave me that like immediate empathy cuz I understood that most of them, their parents were in the system and they really didn't, you know, they felt they were sort of choiceless but like just sort of seeing like how, how easy it would be to fall into this spot that these kids were in. Some of them were there cuz of the three strikes law, like they missed their parole date or their curfew because like the bus was running late and like they, they were in there for like one infraction and then all of a sudden they just piled up cuz of these little like dumb things that weren't even illegal. They were just violations of their stupid parole stuff and just really humanized who the type of people that can be behind bars for me at a younger age. And I think that that personal experience really tied me into wanting to help more in the prison. So whenever I maybe maybe to my, maybe to a fault, cause some of these cases aren't high profile and they're not getting a lot of donors or supporters, but I've always felt it important to have a prisoner case here and there. Cause I think that there's sort of a neglected population of society.
Alison Gill: One thing reminding me of Monica is our discussion, well the discussions when you take criminal law and law school is they talk about theories of criminal law. Like what is the purpose of locking people up in prisons and why are we doing this? Is it about rehabilitation? Right. And like one of the major theories is really interesting and a lot of you know, folks focus on is what's called retribution that society has like, it should sort of have a retributive aspect when someone commits a crime and punish that person. And that's not about prevention, it's not about rehabilitation. I always found some of those concepts very religious in nature. I always found that super interesting those conversations and how they interact with religious belief. Our entire system is sort of formulated on these almost biblical ideas versus of course we should be focusing on rehabilitation. But of course you were talking about young children. Don't need to spend a lifetime in the criminal system. They
Monica Miller: Fell into this circumstance and just cuz you know, the, the prison, the other prisons are just the graduated versions of this. This is a system problem. Like the, if society could do more like in focus on rehabilitation rather than on retribution, we would be in a very different situation.
Liz Cavell: Yeah. Alison, you're hitting on something really interesting. The influence of religion, especially Christianity. The whole criminal justice system is just wrapped in that all the way around the, the basis of so many of the ways in which we do criminal justice, air quotes in America and the extent to which we as a society think that rehabilitation is possible in prison is hugely sort of thought to involve some sort of religious experience. We fetishize more than is necessary probably religious exercise in prison. I mean we're talking today about how we can avail ourselves of those tools to advance our clients' rights in prison. But I do think the emphasis on religious exercise in prison, it's the only thing that have to litigate on. You know what I mean? It's the only language that courts speak is like, oh well we're just gonna take away every liberty interest you could possibly have and the conditions are gonna be horrifying. And the whole system by the way is gonna be for profit. So it's gonna be gross and all the incentives are wrong and it's dehumanizing. Your civil rights can be violated because everyone's immune from suit, but oh you're religious right, those are intact. And so it's like, it's the most protected avenue for pursuing rights in this context I think kind of is an expression of how infused with religion and religious influence the whole system is. And coincidentally, I was invited to speak in November at this conference of, it's like SoCal Secular Coalition. So a bunch of California humanism and secularism groups are coming together to host a conference and the topic that they chose is basically criminal justice reform. And the organizer wrote to me, they wanna educate themselves about this issue. How non-religious people can sort of bring their influence and activism to bear on these issues and why we should care and how data and reason and science can drive better outcomes and just a more humane system. So they're bringing in academics and they want someone to speak to why as atheists, humanists and agnostic, et cetera, why should we care about these issues? Why does religion have such an outsize influence on how we do criminal justice and prison in our country and what can we do to change that? And I just thought that was so interesting. And such a good idea for a conference. This conversation is definitely just yeah. Kind of getting me in that head space. And I think this is exactly what people in our movement are sort of hungry for. This is on the just huge menu of social justice issues that people are just disgusted by and doesn't reflect the values of most people. And why does religion have such an outsize influence on how we do this?
Monica Miller: Exactly. I think that stage four for us, like just kind of humanistically and thinking about these things is how do we reform prison stuff so that we, so that we have a better overall system. One of the more compelling talks that I heard in the last, we'll just say five years at one of our humanist conferences was on the subject of solitary confinement. And I had no idea just, you know, it sounds bad, right? But I kind of in my head it's like, oh, maybe people did some stuff that deserved to get in there. Not that I have this deserve way of thinking of criminal justice, but like it just didn't cross my radar as a societal problem that we need to all care about. And when they talked about the rates of recidivism and how many people get just psychologically damaged from even just a few days in the shoe or one of those like solitary
Alison Gill: Cause it's torture.
Monica Miller: It's torture. And you're taking someone, and usually the people that are in there are women and they're usually women with mental illness. So you're taking people that already have men, maybe not usually cause they're men's prisons, but like the, the maybe the recidivists people that are getting out. But you're taking people that might not be mentally ill and you're making them mentally ill and you're putting them back on the streets and you're taking people that are mentally ill and you're breaking them and then you're still putting them back on the streets. So now you're taking people and, and back on the streets meaning like they don't have resources. They are now going to need societal things that conservatives tend to complain about, like welfare and what are, you know, people homelessness on the streets. That's a product of these policies, you know? And so if preventing people from entering those prison doors in the first place needs to be part of that. And that's where humanism, you know, as a, as a concept, as a philosophy sort of comes in is like drug reform. Like why are people being incarcerated in certain states for marijuana? You know, like that should be a humanist issue on the ground. And, and I say humanist atheist, but you know, that should be an issue that that local folks can get, you know, get involved with right away elect local leaders that don't, you know, prosecute drug crimes like that.
Liz Cavell: It's just science and data driven social policy. Right? Because solitary confinement would not be in the mix if we were approaching policy including criminal law policy and criminal justice policy from a perspective of, okay, let's do things that are empirically based. Let's make our policy based on what the outcome we want is and what the data tells us will achieve that outcome. It's not that hard to do that. But when the influences are so perverse and there's so much retributive influence on the system, it's really hard to do anything productive.
Alison Gill: I think this focus on reform and the need for it is a good segue to the bill I wanted to mention in New York, which basically has to do back with the mandatory referral by courts for substance use services for people that have had a criminal experience with substance use. And it's very simple, but I really hope we can promote it in more areas. What it does is basically say that when a judge sends somebody to mandates that someone receives substance use services, they must verify that those services that they, they make available do not directly violate their religious belief. So they can't send like an atheist to a AA or another religious service. And they also can't do the same for a Muslim, for example. So it has to be something neutral or acceptable to the person. And so we did that specifically. So it's not just about secular people, it's about making sure that everyone can access services that don't, aren't discord in with their beliefs, which I think is important. And every state's different, so it's a little bit hard to mandate this in other states. And this is not yet been signed by the governor, it's been passed by the state legislature, but we're still, we have every reason to think the governor will sign it, but it has not yet been signed. You know, we're really excited about potentially thinking about this in other states as well. Yeah, I think it's an important mechanism that can keep, as you were saying, these people outta the prisons cuz it's an important diversion program.
Monica Miller: Great. Exactly. That is great. I guess we should just wrap up with like, is there any future cases that are on our radar that we should be worried about with the Supreme Courts or cases in the circuits.
Alison Gill: I just learned about one that's worth mentioning. It's not exactly on point, but it involves prisons and that's coming out of the Seventh Circuit. It is the, uh, West v. Radtke decision recently. So this was a case where a Muslim prisoner was required to sort of be strip searched by, well not strip searched by, but strip search, I guess, near a person who's trans, uh, a trans man. And, you know, he objected to it because he did not want to be seen by someone of the opposite sex was against his, his religious beliefs. And that's how he sort of framed it and the district court found it was like there's no evidence gonna ever happen again. It was sort of a diminish, it was only sort of a one time thing. There was no like likelihood of it happening again in the future. However, this, the Seventh Circuit reversed and they did find that it was under RLUIPA that this was unacceptable. And the, the worst thing is, uh, well, I mean that there is a lot, a lot of really bad anti-trans language in there. And because this is a soup between the Muslim prisoner and people representing him and like the state, right, there's nobody to represent the interests of like the trans prison guard. Right? And so the way they describe that person and the way they talk about sex and gender, probably just like, there's no one to sort of express like, well you are really looking at this the wrong way. Like for example, I think what's worst about this is they're saying, one of the arguments is, well, they have to treat the person and have to do this because the person's protected under Title VII, which is non-discrimination in employment. So there's non-discrimination protections for the trans guard. Okay. But the court is saying, well, there is what's called a BFOQ, bona fide occupational qualification. So basically saying you can make an exception here because it's a bona fide occupational qualification to not be trans in order to take this job. So it's like that is such a stretch and the wrong way to use that and it's really, really potentially destructive for anti-discrimination law. So anyway, I just wanna frame that.
Monica Miller: It seems like the opposite of anti-discrimination almost like don't be trans. Like is that what a memo is? Like? I don't understand that. That's, uh,
Alison Gill: It's pretty badly applied, so we're hoping they appeal it.
Monica Miller: Oh yeah, that, that's definitely the kind of case that I was sort of thinking about, like what's on our radar. It's, you know, I think we, we are all sort of aware of like those kind of big ticket religious case items, but it, I'm looking at this as like, yeah, like humanistically, like what are these progressive cases that affect us all affect our listeners that are, you know, in the secular category, um, that they should care about. Um, and I think that's absolutely one of them.
Liz Cavell: Is that West Case being appealed, Alison? Do you know?
Alison Gill: I don't know at this stage it just came out.
Liz Cavell: That's out of Wisconsin, a ye olde home of Rebecca and I, and that's horribly embarrassing and awful. But again, the Seventh Circuit, like all federal circuits sucks now.
Alison Gill: Well, I mean, the worst part is, I mean, I, I hope maybe there's like an intervention or something by some of the groups that represent, you know, trans people because that's part of the problem is there's a lack of like, uh, someone with that voice saying like, the legal issues, you're just mis presenting all of them. Yeah.
Monica Miller: Yeah. Well, that's it for today's episode. I'm Monica Miller.
Alison Gill: I'm Alison Gill
Liz Cavell: I'm Liz Cavell.
Rebecca Markert: And I'm Rebecca Markert. If you've been enjoying our podcast, we want to hear from you. Please write us a review and recommend the show to your friends and family. Don't forget to follow us on Twitter and on Facebook and find out more about our podcast online we-dissent.org. We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by Liz Caval, Alison Gill, Monica Miller, and me, Rebecca Markert. Other production support comes from James Phettelpace and Greta Martens Audio Engineering is provided by Audio for the Arts in Madison, Wisconsin.
Thanks for listening.
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