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Freedom and Exercise of Religion — A Basic Human Right
Sunday, March 14, 2010


The freedom of religion and the right to practice one’s faith is a basic human right. Many immigrants held in detention greatly value their faith and the ability to practice it. Religious Services Programs facilitate detainees’ freedom and exercise of religion within DHS facilities. The U.S. Government has an obligation to uphold these rights based on the U.S. Constitution, Supreme Court rulings, and the Religious Land Use and Institutionalized Persons Act of 2000.

The freedom of religion and the right to practice one's faith is a basic human right outlined in Article 18 of the Universal Declaration of Human Rights. Each person without exception has the "right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."1 Many immigrants held in detention greatly value their faith and the ability to practice it. Religious Services Programs facilitate detainees’ freedom and exercise of religion within DHS facilities. The U.S. Government has an obligation to uphold the religious freedom and exercise of immigrants in its custody. This is not a normative statement, but a legal fact codified by the U.S. Constitution, Supreme Court rulings, and the Religious Land Use and Institutionalized Persons Act of 2000.

The United States has long recognized the freedom of religion enshrined in the First Amendment of the U.S. Constitution which declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."2 While ordinary American citizens have enjoyed this right, prisoners in jail have not been so fortunate. Derek Gaubatz explains that it was not until the 1960s and 1970s that federal courts began extending the free exercise of religion to prisoners. The Supreme Court’s ruling in Cruz v. Beto (1972) was the most significant of these decisions.3 In the case, the Court ruled that a prison in Texas had discriminated against a Buddhist prisoner by not allowing him the same opportunity to practice his religion.4 Gaubatz states that after this case and until 1987, “prisoners enjoyed the highest level of protection for their First Amendment religious exercise rights.”5 According to Gaubatz, the Supreme Court cases, O’Lone v. Estate of Shabazz (1987) and Employment Division v. Smith (1990), reduced the religious rights of prisoners.6

Congress responded to the O’Lone and Smith decisions by passing the Religious Freedom Restoration Act of 1993 (RFRA). The legislation mandated that the government had to have a compelling interest to substantially burden religious practices.7 However, Gaubatz confirms that lower federal courts quickly limited the scope of the law and frequently ruled against claims filed by prisoners. The Supreme Court found portions of RFRA unconstitutional in City of Boerne v. Flores (1997).8

Congress, seeking to conform to the Court’s landmark ruling against the RFRA and to protect the religious rights of prisoners, enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The law stipulates that government actions or policies cannot create “a substantial burden on the religious exercise of”9 prisoners. Gaubatz points out that a substantial burden exists when the government action pressures a prisoner to change his religious practice or prevents him from engaging in the practice.10 RLUIPA defines religious exercise as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”11 Gaubatz stresses that this means all religious practices are protected by the law whether or not they are mandated by a faith or a faith’s fundamental belief.12

Overall, the current law dictates that ICE must accommodate the religious practices of detainees so long as the practices do not hinder the safety, security, or orderly operation of detention facilities. ICE has the burden of proof if it denies a detainee’s religious practice, but arguments citing cost, a large amount of requests, or jealousy among prisoners are not acceptable. Generally, issues related to illegal drug use, infectious disease, gangs, and safety are legitimate causes to deny a detainee his religious rights in a specific situation.   

Further Reading

Universal Declaration of Human Rights

First Amendment to U.S. Constitution

Religious Freedom Restoration Act of 1993

Religious Land Use and Institutionalized Persons Act of 2000

RLUIPA at Four


1) Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
2) U.S. Constitution, amend. 1.
3) Derek Gaubatz, “RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions,” Havard Journal of Law and Public Policy 28, no. 2 (2005), 506-507.
4) 405 U.S. 319, 319 (1972).
5) Derek Gaubatz, “RLUIPA at Four,” 507.
6) Derek Gaubatz, “RLUIPA at Four,” 507-509.
7) 42 U.S.C. § 2000bb-1(a)(b).
8) Derek Gaubatz, “RLUIPA at Four,” 509-510.
9) 42 U.S.C. § 2000cc-1(a).
10) Derek Gaubatz, “RLUIPA at Four,” 517.
11) 42 U.S.C. § 2000cc-5(7)(A).
12) Derek Gaubatz, “RLUIPA at Four,” 522, 529-530.