home newsletter marijuana road stops forest issues books links

1st Amendment/Prisoners Rights Relating to Diet

The following is a petition regarding the need of a County Jail to honor an inmates request for a vegan diet.

The research for this Petition was compiled by Misha Dunlap in July 2001, for an inmate of the Humboldt County Jail. The following may be helpful to other inmates who have diet restrictions associated with religious beliefs which may or may not be recognized by the penal system as an established faith.

This petition came about when a forest defender was arrested for protesting logging operations in forest lands of California's Pacific Northwest in Humboldt County. After repeated requests for a vegan diet to the jail staff were denied or ignored, the request came before the court. The jail argued that they didn't want to cater to any particular inmate and that she could eat what was served unless she had a medical need or could prove that her "preference" for vegan food was truly a long time practice based on religious belief and not just some whim to complicate the job of the jail. After hearing from both sides, the court told the jail to release her, or give her a vegan diet, while the case proceeded through the court. The jail chose to serve her vegan food for the remainder of her sentence.

Misha is more than happy to help anyone locate more information about this issue. She has researched "a ton of web sights" for a myriad of differing religions. People can either e-mail her (with a particular religion) and she will send more pertinent information on that corresponding faith, or you can do your own search using the key words "vegetarian" "diet" and "(religion name)" together. Anyone who is currently in jail (or will be), who consider themselves religious in an individual-based religion and who is having difficulty getting vegetarian/vegan meals because they don't know of others who share their "unestablished" faith and so their faith is not recognized by the penal system, Misha is interested in hearing from you. You may contact her at: misha_dunlap@hotmail.com


A Jail Must Honor An Inmate's Request For A Religious Diet

The great weight of authority from around the country holds that inmates "have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." Ward v. Walsh 1 F.3d 873, 877 (9th Cir. 1993), quoting McElyea v. Babbitt 833 F. 2d 196, 198 (9th Cir. 1987); see also Bass v. Coughlin, 976 F.2d 98 (2d Cir.1992) (per curiam) (clearly established for qualified immunity purposes that "prison officials must provide a prisoner a diet that is consistent with his religious scruples").

As explained in a unanimous decision in Dehart v. Horn, 227 F.3d 47, 59, fn. 8 (3rd Cir. 2000) (en banc), while the cases require a "contextual, record-sensitive analysis," nearly all the appellate cases, except a couple from the deep south, found that the record mandated honoring an inmate's request for a religious diet. (See Makin v. Colorado Dept. of Corrections, 183 F.3d 1205, 1211 (10th Cir. 1999) (prison officials' failure to accommodate inmate's meal requirements during the Muslim holy month of Ramadan violated his First Amendment right to free exercise of his religion); Johnson v. Horn, 150 F.3d 276 (3d Cir.1998) (holding that prison must provide kosher diet to Jewish inmates); Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir.1997) (holding that prison must provide prisoners with nutritional diet in conformity with kosher laws); Whitney v. Brown, 882 F.2d 1068 (6th Cir.1989) (holding that prison must permit Jewish inmates to hold modified Passover Seders); Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975) (requiring prison to provide a kosher diet).

For cases finding the record inadequate to determine whether a religious diet was required, see Ward v. Walsh, 1 F.3d 873 (9th Cir.1993) (recognizing general right to a religious diet but remanding for an evaluation of the prison's interests in denying the diet); LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) (reversing District Court's dismissal of prisoner's claim that prison's failure to provide a vegetarian diet violated his First Amendment rights); Hunaja v. Murphy, 907 F.2d 46 (7th Cir.1990) (remanding case involving Muslim prisoner's claim that failure to provide a diet without pork violated his First Amendment rights because of insufficient evidence in the record to gauge the magnitude of the prison's administrative and security concerns); McElyea v. Babbitt, 833 F.2d 196 (9th Cir.1987) (per curiam) (recognizing general right of prisoners to a diet in conformity with their religious beliefs but remanding due to an issue of fact as to the sincerity of the prisoner's belief).

The Prison May Not Reject An Inmate's Sincerely Held Religious Belief In A Particular Diet Simply Because It Is Not Orthodox, Mainstream, Or Central To The Inmate's Religion

As explained in Dehart v. Horn, 227 F.3d 47, 55-57 (3rd Cir. 2000) (en banc), it would be "inconsistent with a long line of Supreme Court precedent to accord less respect to a sincerely held religious belief solely because it is not held by others." The Supreme Court cautioned in Employment Division v. Smith, 494 U.S. 872, 886-87, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (plurality opinion): "[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Commissioner, 490 U.S. [680,] 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 [(1989)]. Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

Although the Court was divided in Smith, the concurring and dissenting opinions both expressly agreed with the majority's admonition. See id. at 906, 110 S.Ct. 1595 (O'Connor, J., concurring) ("I agree with the Court . . . [that] '[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith.'" (quoting Hernandez); id at 919, 110 S.Ct 1595 (Blackmun, J., dissenting) ("I agree . . . that courts should refrain from delving into questions whether, as a matter of religious doctrine, a particular practice is 'central' to the religion"). Smith is not an aberration. Rather, it is part of a consistent and resounding theme echoed throughout many Supreme Court opinions. See Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ("[T]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect . . . . [I]t is not within the judicial function and judicial competence to inquire [who has] more correctly perceived the commands of their common faith.'); Jones v. Wolf, 443 U.S. 595, 602-06, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 450, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) ("the First Amendment forbids . . . courts from . . . assessing the relative significance to the religion of the tenets"); United States v. Ballard, 322 U.S. 78, 85-87, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); see also Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.1981) ("Judges are not oracles of theological verity, and the Founders did not intend for them to be declarants of religious orthodoxy."); id at 1034 n. 18 ("[T]he judicial branch is neither authorized nor equipped to pronounce upon the veracity of a religious precept.")

The Court's discussion in United States v. Seeger, 380 U.S. 163, 184-85, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965), of the proper role of courts in reviewing military conscientious objector claims supports this analysis: The validity of what [a conscientious objector] believes cannot be questioned . . . . Local boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.

But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact . . .

A claimant meets this initial burden, therefore, if he or she proves that the beliefs are truly held and religious in nature. Martinelli v. Dugger, 817 F.2d 1499, 1504 (11th Cir.1987). Although it is true that some inmate claims may be so idiosyncratic as to be insincere, see Brown v. Wainwright, 419 F.2d 1376 (5th Cir.1970); Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970), for the judiciary to attempt to screen out from those practices to which only a minority of believers adhere, would be contrary to the Supreme Court's teachings in Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), and Fowler v. Rhode Island 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). Moreover, although inmates surrender some First Amendment rights upon incarceration, "the prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). It is clear that petitioner's veganism is religious-based, like hundreds of millions of sincere religious people worldwide who are some kind of vegetarians not because they do not like the taste of steak, lobster, pizza, omelets or ice cream, but because they have religious objections to eating meat or animal products. An objection to killing animals and eating them or exploiting animals for food is almost always based on religious scruples. Therefore, the Humboldt County jail should have to prove that an inmate's veganism is not a sincerely-held religious belief or permit an inmate access to the internet or a religious library to substantiate the claim.

Under well-settled law that the Humboldt County jail is oblivious to, it is unconstitutional for jail functionaries to determine whether a vegan/vegetarian diet is required or preferred by the majority of pagans or Jews or Buddhists or, such Christian sects as the Seventh-day Adventists (see LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) or Rastafarians (see Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998) (summary judgment for petitioner is reversed and case remanded to permit prison officials a chance to challenge Oluwa's claim of belonging to the Rastafarian religion and the vegan diet required by that religion) or Hindus or Sikhs or Zen Buddhists (Spies v. Voinovich, 173 F.3d 398 (6th Cir. 1999) (court ignores the above supreme court authority and rules that because the inmate stupidly conceded that a vegan diet was not required by his Zen Buddhist faith, that it was sufficient that the prison provided him a vegetarian diet); but see id. at 407-411, Justice Moore's dissenting opinion, chastising the majority for ignoring the above authority that it is irrelevant whether all the sects of a particular religion requires a particular diet). The sole issue is whether petitioner's belief in a particular diet is a sincerely held religious belief, no matter how unorthodox or fringe. The evidence is undisputed that petitioner's belief is sincere and religious-based, as petitioner's declaration and other evidence proves. The Jail May Not Starve Petitioner While It Tries To Make Her Somehow Prove Her Religious Belief; The Jail Should Provide The Religious Diet Until It Proves The Belief In A Certain Diet Is Insincere Or Not Based On A Religious Belief

The Humboldt County jail administration routinely ignores the First Amendment, making irrational, arbitrary conclusions that an inmate's belief in a religious, or medical, diet is insincere or not required by his or her religion.

In re Kim Starr, Humboldt County No. CV01543, the jail virtually starved Ms. Starr for 40 days and 40 nights, who was forced to subsist on a fruit and vegetable diet, while she patiently exhausted all her administrative remedies through all four levels of jail review and then had to wait an additional week to be brought to court on her habeas petition. On her first court appearance date, July 11, 2001, Judge Cissna took about a half of hour to quickly review the petition and conclude that it appeared that Ms. Starr held a sincere religious belief in her vegan diet. When the court gave the jail a choice between releasing her while the matter could be briefed and a hearing could be held or feeding her a vegan diet during this interim, the jail conceded that Ms. Starr was constitutionally entitled to a vegan diet and withdrew any request for further briefing or hearing on the matter.

In a taped interview with the radio station KMUD, on the day of Judge Cissna's ruling, the top administrator of the jail, Chief Deputy Gary Philp, disingenuously declared that if the jail had only known of the proof Ms. Starr provided to the court, they would have given her a vegan diet long ago. Lies. Ms. Starr provided plenty of information to the jail about the sincerity of her religious beliefs, including a letter from the only rabbi in Garberville, a student rabbi, Naomi Steinberg. The jail, however, consulted another rabbi who said that most Jews simply refrain from eating pork, so therefore, the jail concluded that Ms. Starr's religious belief in a vegan diet could be ignored and she could starve. The jail's position appears to be the same as with petitioner, but it is clearly wrong for the same reasons.

In LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) the court reversed the District Court's dismissal of a prisoner's claim that the prison's failure to provide a vegetarian diet violated his First Amendment rights, finding that it was irrelevant whether the diet was required by his church: In order to evaluate an inmate's claim that a prison policy impermissibly infringes on a constitutionally protected religious freedom, the trier of fact must determine if the prisoner is sincere in his or her religious beliefs. See Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 832-33, 109 S.Ct. 1514, 1517, 103 L.Ed.2d 914 (1989); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981); Martinelli v. Dugger, 817 F.2d 1499, 1503 (11th Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988). The district court dismissed plaintiff's complaint, in part, because the Seventh Day Adventist faith does not require its followers to eat a vegetarian diet. Plaintiff submitted evidence, however, stating that one-half of Seventh Day Adventists are vegetarians, and that a vegetarian diet is highly recommended by the Church. [cite omitted]

Differing beliefs and practices are not uncommon among followers of a particular creed. Thomas, 450 U.S. at 715, 101 S.Ct. at 1430. Moreover, the guarantees of the First Amendment are not limited to beliefs shared by all members of a religious sect. Id. at 715-16, 101 S.Ct. at 1430-31. Instead, plaintiff is entitled to invoke First Amendment protection if his religious beliefs are sincerely held. Frazee, 489 U.S. at 833. 109 S.Ct. at 1517 (characterizing Thomas, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), as rejecting argument that plaintiff's sincere religious belief that he could not work on armaments was protected under the First Amendment unless the religion at issue formally forbade work on armaments); Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953) ("(I]t is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment."). Furthermore, an individual's genuine and sincere belief in religious dietary practices warrants constitutional protection. See Martinelli, 817 F.2d at 1504-05.

It is clear beyond dispute that petitioner is not seeking special foods, such as alleging that her unique religion requires steak and eggs daily and ice cream for dessert. Obviously, a vegan or vegetarian diet is rooted in the religious beliefs of hundreds of millions of people of many different faiths. It is not idiosyncratic. It is the jail's refusal to honor this religious belief that is idiosyncratic, unconstitutional and fascist. The Nazis too starved inmates whose religion they did not accept. In the First, Second and Third centuries, the Romans persecuted Christians, whose religion they did not accept as bona fide. The Puritans and many other religious sects fled to America to escape religious persecution in Europe, where the people in power tried to force them to give up their religion or to comply with their rules and regulations. And now the Humboldt County jail tries to force inmates to choose between slowly starving or eating meat or animal products they find religiously abhorrent, despite the fact that the founders of our country, informed by the persecution of religious sects who fled to America to practice their religion, ratified the First Amendment's provision securing the right to religious freedom.

Petitioner Is Entitled To Immediate Interim Relief Either While She Exhausts Administrative Remedies Within The Jail Or While An Expedited Briefing Schedule And Hearing Date Is Set To allow the jail to starve petitioner while she allows the jail to take over a month to reject her claim, as it did in Ms. Starr's case, is unconscionable. First, it is obvious that it is futile to use the jail's administrative review process, because the whole culture of the jail is to enforce some kind of orthodox Christian belief that because eating dead animals and animal products is not against their religion, therefore anyone who holds a different belief must be insincere or the belief must not be a religious belief. These reasons are blatantly unconstitutional and discriminatory and appear oblivious to the fact that Christians without dietary restrictions make up less than 20% of the world's population (the jail appears to honor the Catholic dietary restriction of meatless Fridays by serving fish) and that hundreds of millions of people honor religious-based diets, most prominently vegetarianism, and to a lesser extent, veganism.

The jail also seems to think that inmates, without access to the internet or a religious library, are suppose to somehow prove beyond a reasonable doubt or some other kind of impossible standard to meet, that their belief in a vegan or vegetarian diet is a religious belief. This is unfair and unconstitutional. While petitioner and Ms. Starr had outside help to establish the bona fides of their religious-based diet, it is a travesty that the jail thinks it can starve people for 40 days and 40 nights until their cases can be proven and heard. Thus, petitioner is requesting immediate interim relief to require the jail to provide her with a vegan diet. (Petitioner also has a doctor's note unequivocally stating that she cannot eat milk products due to a medical condition, but the jail also refuses to accommodate that request, alleging that powdered milk is not really milk.)

In the taped interview with the radio station KMUD on the day of Judge Cissna's ruling, July 11, 2001, the top administrator of the jail, Chief Deputy Gary Philp, conceded that providing a vegan meal was "not difficult" for the jail to prepare. Obviously, this is the case. Petitioner, as was Ms. Starr, is simply asking for rice and beans or tofu, along with fruits and vegetables, nothing expensive or difficult to prepare. In fact, title 15 of the California Regulations specifies what foods are appropriate to serve to people on restricted diets, so it is all laid out for the jail. Further, as anyone knows, it is almost as easy to prepare two or ten vegan meals as it is to prepare one vegan meal and the jail stipulated in front of Judge Cissna that it would provide Ms. Starr with a vegan diet until her release, which is set for August 4, 2001. (The fact that the jail is breaking that promise may be dealt with in a contempt hearing, but that does not alter the fact that preparing several vegan diets is no more difficult than one.)

The Alameda jail, for example, provides vegetarian meals on request and does not bother to force any inmate to prove the sincerity of his or her religious belief or that it is a religious belief. But if the Humboldt County jail wants to play this sick, unconstitutional game of denying inmates, who do not eat animals or animal products, any vegetable protein, then this court must intervene, at the outset, to determine for itself whether there is a reasonable probability that petitioner will be able to prove that she holds a sincere religious belief in a vegan diet. Once provided a vegan diet on an interim basis, then at the jail's option, petitioner would be glad to go through the futile jail appeal process or, if county counsel prefers, simply set an expedited briefing schedule and a hearing. Of course, petitioner is not allowed to buy vegan protein in the jail or have it brought into her from the outside, so she slowly starves.

It is time for the county jail to treat its inmates in a constitutional, humane manner and it is short-sighted to permit the jail to unreasonably refuse petitioner a vegan diet, just as it did with Ms. Starr. The federal civil rights suits that will almost certainly be filed (so that the jail cannot continue its campaign to starve people of conscience and non-Christian religious faiths into submission) will cost the county in damages and attorney fees a far greater amount than providing the requested religious vegan diets, as is required by the First Amendment, which is probably as inexpensive or less expensive to provide than the normal meat diets.

The jail's claim that other inmates will be jealous is frankly absurd. No meat-eating person is jealous of someone who eats rice and beans and tofu as their source of protein. Just ask. The jail already provides some special meals, so providing petitioner one cannot possibly lead to jealously or unrest among the inmates. Simply because jealousy is a possible factor does not mean that it is a factor in the case of petitioner who is simply asking not to be forced to eat foods that are "against her religion." In fact, the jail tries to make the meat-eating inmates jealous and angry, by forcing the inmates with special dietary needs to be served their food first, while all the other hungry inmates wait in line, such that any complaints by inmates with special diets result in delays for everyone else. (Kim Starr objected to fish and cheese potatoes last Friday.)

The jail's routine refusal to honor religious based dietary claims borders on religious fascism and must be stopped. Apparently, however, the courts are the only institution that the jail will listen to, and then, only reluctantly. See Kahey v. Jones, 836 F.2d 948 (5th Cir.1988) (holding that prison was not required to provide a diet consistent with prisoner's religious beliefs because doing so would create administrative difficulties); Martinelli v. Dugger, 817 F.2d 1499, 1507 n. 29 (11th Cir.1987) (upholding prison's policy of not providing kosher diet a Jewish inmate because doing so would "require excessive budgetary allowances").

home newsletter marijuana road stops forest issues books links