BYU Law Review


Elyse Slabaugh


The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing to strike down or clarify Cutter’s deferential language. This is problematic because there is an inherent contradiction in applying strict scrutiny with deference. Although many courts follow a true strict scrutiny approach, in practice, remnants of a deferential approach remain among lower courts.

This Note argues that courts must adhere to strict scrutiny, not only in theory, but also in practice. In doing so, it first gives a brief, general overview of the history of religious freedom in the prison system, with particular focus on the efforts and struggles of religious minorities. Then it addresses the inconsistency between Cutter and Holt while comparing the due deference and hard look approaches. Finally, to provide some concrete examples of why this inconsistency matters, it examines two issues more indepth: First Amendment retaliation claims and equal treatment claims. It looks at several recent cases to further support the conclusion that strict scrutiny is not only necessary to protect religious minorities’ rights, but it is also both practical and feasible, even in the prison context.


© 2023 Brigham Young University Law Review