Home November 2016 Bagels & Locks II

Bagels & Locks II

1016fischerIn many ways, the issue of kosher food in the prisons emerged only forty years ago when Rabbi Meir Kahane, of the Jewish Defense League and later a Knesset member, was sentenced to a stint in federal prison. Upon entering federal custody, Rabbi Kahane demanded kosher meals, and the prison authorities laughed off his demand. Rabbi Kahane sued, and the district court agreed with him, ordering that the prisoner’s First Amendment rights to practice his religion necessitated that he be given a kosher prison diet. The United States Court of Appeals for the Second Circuit affirmed. Kahane v. Carlson, 527 F.2d 492 (2d Cir. 1975).

In time, Muslims and Seventh Day Adventists also began demanding kosher meals for religious reasons. Today, forty years after Rabbi Kahane broke the kosher-food barrier, the vast majority of kosher-meal consumers in the federal prisons are non-Jewish.

In one interesting recent case, four years ago the Nevada State Department of Corrections announced their intention to discontinue their prison kosher-food program because the kosher meals were costing them $1.5 million a year. A Jewish inmate sued, and the matter grew into a civil rights class action brought by 300 Jewish prisoners who were on the kosher meal plan. The plaintiffs alleged that the change in the kosher diet policy violated their First Amendment rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The state ultimately capitulated and entered into a class settlement by which Nevada agreed to prepare kosher meals and obtain strict rabbinic kosher certification of those meals. The meals also would have to be certified by an independent state-hired nutritionist as providing “proper nutritional values. . . .”  But here was the “kicker”: Of the 300 plaintiffs who had been receiving kosher prison meals, 45 of them opted out of the final settlement on grounds that the kosher meals, as now approved, would not be as good as the meals being served to the general Nevada Prison population.

Makes you wonder: Are green eggs and ham that good? Or was the Nevada kosher meal plan deliberately inadequate, in terms of taste and variety, to induce borderline kosher-eaters to drop out of the plan voluntarily?

On the other hand, in Florida the state corrections department had been trying in every way to discontinue serving kosher meals to its prisoners—again, because of the higher costs. The court was deeply perturbed that the Department of Corrections had been trying in every which way to stop providing kosher meals. “Given Defendants” continual refusal to acknowledge that they are required by law to provide a kosher diet to those prisoners with a sincere religious belief requiring them to keep kosher, auditing procedures are necessary,” the Court ruled. Therefore, the federal court issued an injunction mandating a report each month of the number of prisoners enrolled in the state prisons’ “Religious Diet Program” (RDP). The court’s order criticized the Florida department for “how stubborn it has been throughout all this litigation, similar to a school principal talking to a stubborn and deceptive school child,” according to Luke Goedrich, deputy counsel for the Becket Fund for Religious Liberty.

By this July, the Florida Department of Corrections was arguing to the federal Eleventh Circuit Court of Appeals that the kosher prison meals program had ballooned to cost the state $12.3 million a year, with 10,000 of the state’s 100,000 prisoners demanding kosher meals.

In defending the kosher meals program and demanding that Florida comply, Daniel Blomberg, legal counsel of the Becket Fund for Religious Liberty, argued that “When prisons refuse to provide kosher meals, many Jewish prisoners don’t eat non-kosher food; they go hungry. That’s unnecessary, and it’s wrong. Prisoners surrender many of their physical rights at the jailhouse door, but they do not surrender their human dignity.”

More to come.

Rabbi Dov Fischer, Adjunct Professor of Advanced Torts law and the law of California Civil Procedure at UCI Law School and at Loyola Law School, is former Chief Articles Editor of UCLA Law Review and is Rav of Young Israel of Orange County.

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