Religious Issues

religious issues

Incarcerated individuals have a constitutional right to freedom of religious expression. See the Department of Correction’s policy on Religious Programs and Services, 103 CMR 471, here and read the DOC’s Religious Services Handbook here.

Below we provide an overview of some of the common issues faced by incarcerated people concerning freedom of religious expression.

Religious Diet

Unfortunately, we are unable to assist in obtaining a religious diet. The following is information to help you obtain a religious diet on your own.

How to Request a Religious Diet

If you have a sincere religious belief that requires you to have a special diet you should write to the chaplain of the prison (or to the superintendent if there is no chaplain) requesting that diet per 103 CMR 471.09(5).  (“Inmates whose religion places restrictions on diets will be permitted access to a special diet”).  We suggest sending a copy to the superintendent even if you send your request to the chaplain. You should be able to obtain the regulation from the law library.

Your letter should state the basis for your request.  If you are a member of a specific religion, describe the specific religious commandment requiring that you adhere to your dietary request.  If you are making the request based on a purely personal religious belief (equally valid under the law as a commandment of a recognized specific religion), you should state that you have a sincere, religious belief that requires that you adhere to the diet that you are requesting.  

If Your Diet Request is Denied

In the event that your diet request is denied or you do not receive a response to your request, you should file a formal grievance requesting the special diet.  This serves two purposes.  The first is to try to resolve the issue by getting the diet through that process, and the second is to preserve your right to file suit about the denial if you decide to do that.

If the DOC refuses to provide a religious diet, you could choose to file a suit in court to force the DOC to provide your religious diet to you.  This office can not assist you with doing so but can provide a pro se packet of the initial information you need to help you file if you write and request it.  Arguably, in order to have a court uphold a denial of your supported request for a religious diet, the DOC would have to establish that the denial serves a legitimate and compelling state interest and the denial is the least restrictive means of accomplishing that compelling interest.  The DOC would have to do more than simply state that it has a compelling state interest, such as “security”.  It would have to demonstrate a specific connection between denying you the diet, the compelling state interest, and that the refusal is the least restrictive means of achieving that state interest.  In other words, inconvenience and/or non-specific declarations of a state interest are not a sufficient basis for denying the diet.  Attorney-General v. Desilets, 418 Mass. 316 (1994); Alvarez v. Flynn, Worcester Superior Court No. 95-0275 (July 6, 1995) (Carhart, J.); Castonguay v. Pepe, Middlesex Superior Court No. 97-454-E (September 9, 1998) (van Gestel, J.).

That is the best-case scenario.  However, even if a court were to take a narrow view of the applicable legal standard, the DOC would have to demonstrate that it is acting “reasonably” in pursuit of legitimate state interest.  The “reasonable” burden is much easier for the DOC to meet.  

** Please note that if you decide to bring a lawsuit on your own, or with the assistance of a private attorney, it is your responsibility to meet any time deadlines for pursuing your claim.  There are unusual circumstances in which time limitations may be extended, but these need to be examined on a case-by-case basis.  The limitations described here apply to most incarcerated people’s problems are:

  1. If you are challenging any action or problem that can be grieved, you must follow the grievance procedure for the jail or prison that you are in before you can file any lawsuit about the problem.  This is a new law.  The only exception to this grievance requirement is if you think that your sentence is over and you are filing a habeas corpus petition asking for immediate release.
  2. You have two years from the date of the complained-of incident to present any negligence claims to the appropriate state or county officials pursuant to the Massachusetts Tort Claims Act, Massachusetts General Laws Chapter 258 (G.L. c. 258).  You are required to wait six months after presenting your claim pursuant to G.L. c. 258 ? 4 before filing in state court.  You cannot file a court action for negligence unless you have fulfilled this presentment requirement.  
  3. You have three years from the complained-of incident to file a civil action in court, including a claim of violation of your civil rights or a G.L. c. 258 negligence claim.
  4. If you are challenging an administrative proceeding, such as a disciplinary, parole, or classification hearing, you have sixty days from the administrative decision to file a civil action pursuant to Massachusetts General Laws Chapter 249, section 4 (action in the nature of certiorari). 

Religious Land Use and Institutionalized Persons Act (RLUIPA)

Under the RLUIPA, prisons and jails cannot substantially burden an individual’s exercise of their religion unless the facility can demonstrate that it has a compelling interest that cannot be achieved through any other less restrictive means.

The institutionalized persons provisions in the RLUIPA are meant to keep facilities from imposing arbitrary restrictions on religious exercise. Incarcerated persons retain First Amendment rights that do not conflict with their incarceration. Specifically, the RLUIPA states that prisons and jails cannot substantially burden an individual exercise of their religion unless the facility can demonstrate that it has a compelling interest that cannot be achieved through any other less restrictive means.

For instance, the U.S. Supreme Court held that a prison’s no-beard policy violated the First Amendment. In this case, a person had converted to Islam and wanted to grow a beard based on his religious beliefs. This was contrary to the prison’s no beard policy which had no religious exception; the policy only made an exception for individuals with skin conditions.

The prison failed to show that the no beard policy was the least restrictive way to further their goals of identifying individuals and preventing individuals from hiding contraband. Therefore, the policy violated the individual’s rights under RLUIPA.

For more information about the RLUIPA, the Department of Justice provides the following Frequently Asked Questions document on their website.

If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):

1:00pm – 4:00pm

or write us a letter to:

50 Federal Street
4th Floor
Boston, MA 02110


50 Federal St., 4th Floor, Boston MA 02110