410 F.2d 995 (D.C. Cir. 1969), 20940, Barnett v. Rodgers

Docket Nº:20940, 20942.
Citation:410 F.2d 995
Party Name:Leroy BARNETT, Appellant, v. Charles M. RODGERS, Superintendent, D. C. Jail, Appellee. Carl H. CLARK, Appellant, v. Charles M. RODGERS, Superintendent, D. C. Jail, Appellee.
Case Date:February 18, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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410 F.2d 995 (D.C. Cir. 1969)

Leroy BARNETT, Appellant,


Charles M. RODGERS, Superintendent, D. C. Jail, Appellee.

Carl H. CLARK, Appellant,


Charles M. RODGERS, Superintendent, D. C. Jail, Appellee.

Nos. 20940, 20942.

United States Court of Appeals, District of Columbia Circuit.

February 18, 1969

Argued June 28, 1968.

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Messrs. Ross O'Donoghue and George A. Fisher, Washington, D.C., (both appointed by this court) for appellants.

Mr. David P. Sutton, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel. were on the brief, for appellee.

Before MCGOWAN, TAMM and ROBINSON, Circuit Judges.


The basic issue before us is the degree to which officials of the District of Columbia Jail are constitutionally compelled to accommodate the dietary laws of the Muslim faith in the bill of fare afforded Muslim inmates. This question became a matter of judicial concern when appellants, Muslim prisoners in the jail, 1 complained of the menu there in essentially similar pro se petitions for writs of habeas corpus filed in the District Court. Citing the doctrinal prohibition of their religion against the consumption of swine, appellants alleged that jail authorities had denied their request to 'be fed, at least, one full-course pork-free diet once a day and coffee three times daily.' Proceeding obviousy on the Free Exercise Clause of the First Amendment, they sought an order directing the superintendent of the jail 2 to respect, to that extent, Muslim dietary tenets in the provision of their meals or, alternatively, directing their release from custody on the ground that continued confinement of existing terms constituted cruel and unusual punishment.

The District Court initially dismissed the petitions without hearing. On appeals brought here, we vacated the orders of dismissal, appointed counsel, and remanded the cases to the District Court for hearing. 3 Following remand, the District Court, on appellants' motion,

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treated the petitions as alternative applications for mandamus or habeas corpus 4 and, without objection, consolidated. them for hearing.

Uncontested evidence at the hearing established the scope and strictness of the Muslim injunction against the eating of swine. A Muslim minister testified that the ban is absolute, and extends to all pork products and to all food prepared with pork derivatives. Another Muslim testified that the interdiction 'is a life or death matter.' 'If our lives depend on it, ' he explained, 'we can't eat pork.'

The record discloses, however, sharp conflicts in the evidence as to the board available to prisoners unwilling to partake of pork. 5 Appellants' witnesses, including a former inmate who had worked in the jail kitchen, testified to an extensive inclusion of pork in the prison fare. 'We would have pork meats maybe five or six times, ' one witness said, 'before we had a pork-free meal.' The jail's chief steward disagreed, asserting that of the 14 main dishes served at lunch and supper during a week, typically only about two contain pork. Appellants, however, had subpoenaed copies of the jail's recent menus and, upon inspecting them, the chief steward admitted that five of the 14 meat courses in the most recent weekly menu contained pork.

Appellants' witnesses also testified that pork is used to prepare such items as hamburgers, meat loaf, chili con carne, and gravies served with non-pork meats. Appellee's witnesses deny this, but admit that beside pork in its more obvious forms, it is present in macaroni and cheese, hot dogs, cold-cuts, and various cooked luncheon meats. The chief steward stated that pork is used to season about half of the green vegetables, as well as beans, onions, stewed tomatoes, and other side dishes. All told, it was said, perhaps two-thirds of all the meals served at the jail contain pork or foods cooked with pork, and no substitutes are offered.

While the District Court made no specific finding in this regard, it is evident that pork and pork derivatives eventuate in some form in a substantial number of the meals provided inmates at the jail. 6 Moreover, appellants complain that they do not eat all of the ostensibly

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non-pork dishes because they cannot always ascertain that they are pork-free. Many of the dishes contain pork in covert forms, and these the menus do not identify, 7 and even if they did they are not generally posted in areas to which prisoners have access. Not knowing what future servings will bring, they cannot anticipate a meal containing pork items by filling up at a previous all non-pork meal.

When appellants rested their case-in-chief, the District Court granted a defense motion to dismiss. 8 The court found that 'the inmate population of the District of Columbia Jail is fed a well balanced and wholesome diet, ' and that appellants may 'by refraining from eating those things that they consider objectionable practice their religion.' 9 The court further found that 'the diet provided at the * * * Jail is prepared with no special consideration given to any prisoner or religious denomination.' 10 We conclude, however, that this disposition failed to take into account factors of the highest relevance to appellants' constitutional claims. We accordingly reverse the dismissal orders appealed from and remand the cases to the District Court for further proceedings.


Our starting point is the teaching of Cantwell v. Connecticut 11 that the First Amendment

'embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains

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subject to regulation for the protection of society.' 12

Nonetheless, when governmental regulation of action within the reach of the First Amendment is challenged, 'it is basic that no showing merely of a rational relationship to some colorable (governmental) interest would suffice.' 13 Where governmental activity impairs individual ability to abide religious beliefs, two demonstrations become essential to its validity. The first is a clear showing that 'any incidental burden on the free exercise of appellant's religion (is) justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate * * *:" 14 on this score, 'only the gravest abuses, endangering paramount interests' 15 can engender permissible limitations on free exercise. The second is an equally convincing showing that 'no alternative forms of regulation would combat such abuses without infringing First Amendment rights.' 16 For 'even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' 17 However attractive the end to be achieved, the means employed must hoard First Amendment values.

But appellee would have us believe that he need not make these showings because of appellants' status as his prisoners. Such is not our understanding of the law. It is undoubtedly true that, because the exigencies of governing those in prison are different from and greater than those in governing those without, 'lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by considerations underlying our penal system.' 18'But it has never been held that upon entering a prison one is entirely bereft of all his civil rights and forfeits every protection of the law.' 19 To say that religious freedom may undergo modification in prison environment is not to say that it can be suppressed or ignored without adequate reason. And although 'within the prison society as well as without, the practice of religious beliefs is subject to reasonable regulations, necessary for the protection and welfare of the community involved, ' 20 the mere fact that government, as a practical matter, stands a better chance of justifying

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a curtailment of fundamental liberties where prisoners are involved does not eliminate the need for reasons imperatively justifying the particular retraction of rights challenged at bar. 21 Nor does it lessen governmental responsibility to reduce the resulting impact upon those rights to the fullest extent consistent with the justified objective. 22


The record supports the District Court's findings so far as they go, but an insuperable difficulty emanates from the absence of findings bearing upon the criteria that are constitutionally crucial. There is no finding as to whether any particular 'considerations underlying our penal system' 23 warrant the tax on conscience that the jail's food service policies require appellants to endure. Nor is there a finding as to whether that program could not be administered in such a way as to lighten or eliminate its burden on free religious exercise. And our own scrutiny of the record has revealed little to legally support the program as it is now conducted.

The acting superintendent of the jail and the chief steward testified that the menus are planned to provide a well-balanced diet within a budgetary allocation of 90 cents of food materials per prisoner per day. They conceded, however, that the planning is done without respect for the fact that some prisoners cannot dine on pork. They stated that menus are prepared without regard for other religions as well, explaining that the usual serving of fish for one meal on Friday is not 'just for Catholics. It's just a tradition, the same as Turkey for Thanksgiving.' The only hint of any practical limitation on the arrangement appellants propose is found in the...

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