Legal History of Religious Accommodation and Muslim Prisoners

Bernard Freamon chronicles the legal history behind the recent case regarding religious accommodation of prisoners, Conway v. Purves.


Four Muslim prisoners incarcerated in four prisons in the Michigan prison system just settled a federal lawsuit against prison officials. The lawsuit, Conway v. Purves, No. 13-cv-10271 (E.D. Michigan, 2017) alleged that the prisoners were denied sufficient nutrition when they fasted during Ramadan in 2011 and 2012. Although the Michigan prison system employs dietary policies allowing prisoners to fast during Ramadan, the prisoners claimed that the caloric intake provided to them fell far below national standards, resulting in the deprivation of a healthy diet resulting from their choice to follow Islamic ritual laws mandating a fast during daylight hours during the month of Ramadan. The prisoners alleged that this set of circumstances violated their constitutional right to the free exercise of religion, to be free from cruel and unusual punishment while incarcerated, and to equal protection of the laws, and that the prison officials also violated various federal statutory provisions.

The Conway settlement followed rapidly after the judge denied the defendants’ motion for a summary judgment on the basis of a claim of qualified immunity. The qualified immunity defense is frequently raised by defendants who are government officials in civil rights cases. The defense requires an official to show that the right asserted by the plaintiff was not “clearly established” by federal statutory or constitutional law at the time of the event and that the defendant acted in good faith. It is most often raised by police officers seeking to avoid liability for the alleged use of excessive force.

The judge in the Conway case rejected the prison officials’ claim that they were not liable. He refused to allow the defendants to assert the qualified immunity defense, holding that a reasonable official in the position of the prison administrators at the time would have known that the diet offered was insufficient to sustain plaintiffs in good health during Ramadan, thus violating their First and Eighth Amendment rights. The judge also cited an earlier decision from the Sixth Circuit Court of Appeals, Welch v. Spaulding, 627 Fed. App’x 479, 484 (6th Cir. 2015) (denying grant of qualified immunity to prison officials where plaintiffs were provided 1300 calories per day in meals served during a 30 day Ramadan fasting period). After the judge denied the claim, the defendants were faced with the Hobson’s choice of settling the case or going to trial and risking a large jury verdict against them. They chose to settle.

This settlement should not surprise anyone familiar with federal law or with the legal history of claims by incarcerated Muslims seeking recognition of their right to appropriately fast during Ramadan, in accordance with the dictates of Islamic law. In point of fact, there is an important history of claims by Muslim prisoners seeking the right to pray, fast, provide and receive charity, name themselves, marry, dress, employ hygienic practices, and engage in other behaviors mandated by Islamic ritual law.

Consider the famous episode of Muhammad Ali and his use of Islam to appeal to social justice and to advance U.S. civil rights. Such claims can be traced back to the 1940’s, when Elijah Muhammad and members of the Nation of Islam were incarcerated for refusing to submit to draft board orders to join the U.S. military and fight in World War II, as in Clay v. United States. His fight was a prelude to the fight that these prisoners continue. In that sense, the actions of the Nation of Islam, and its campaign to achieve recognition and protection in America’s prisons, have been described by one author as “landmarks in American religious and legal history.”[1]

Courts have responded differently over time. Initially courts followed the so-called “hands-off doctrine,”[2] meaning they were loathe to interfere with the actions of prison administrators in dealing with the religious claims of prisoners, especially non-mainstream claims. In that era, prison administrators treated the Nation of Islam as nothing more than a “cult” or radical fringe group.

But as incarceration rates of African American men began to explode, the Nation of Islam’s program became increasingly attractive to prisoners, and more mainstream. After the death of Elijah Muhammad, many members of his organization enthusiastically embraced the tenets of more mainstream Islam. This mainstreaming of Islam in prisons had the surprising effect of illustrating the benefits of sharīʿa-centered norms in coping with prison life.

In the meantime, federal courts began to acknowledge that claims by prisoners seeking to enforce their right to practice non-Christian religions were deserving of protection, even over the objection of prison administrators. In a series of decisions beginning with Cruz v. Beto, 406 U.S. 319 (1972) (recognizing the right of a Buddhist prisoner to worship and to be free from religious discrimination by administrators), courts interpreted the Constitution to require vigorous enforcement of rights to religious free exercise, so long as the religious practice could be accommodated without interfering with “legitimate penological interests” and so long as the government’s restrictions were the “least restrictive means” of furthering the government’s compelling interests in safety and security.

Accommodating a prisoner’s diet during Ramadan to permit compliance with the dictates of Islamic law, which are quite clear and well-known, easily satisfies this test. Federal and state courts around the country rapidly recognized a prisoner’s right to this accommodation. Therefore, any current prison administrator who acts in contravention of this right acts at his or her peril.

While the settlement of the Conway case is a positive development in light of existing, well-established law, there are some aspects of that Conway case that are quite disturbing. Even though the Sixth Circuit law was “clearly established” and even though the prison officials were personally made aware of the prisoners’ claims, they nevertheless took the position that they did not have to provide the prisoners with a healthy diet, meaning 2400 to 2600 calories per day, as prescribed by the United States Departments of Health and Human Services and Agriculture. Furthermore, documents in the case show that there were at least four prior lawsuits brought by Michigan prisoners making similar claims pending in the courts when the Conway case was filed. Several of those cases also resulted in court decisions against the prison administrators or settlements favorable to prisoners. In fact, in response to one of the lawsuits, the Michigan Department of Corrections amended its policy on caloric intake for prisoners fasting during Ramadan to make sure it did not run afoul of the federal law.[3] Yet, one prisoner testified that he lost 11 pounds during the Ramadan fast. Another testified that he lost 12 pounds. And a third testified that he lost 15-20 pounds. There were also consistent complaints that Muslim prisoners often received less food during Ramadan or breakfast after sunrise or both. The prisoners alleged that they suffered from hunger pains, headaches, dizziness, fatigue and/or shakiness as well from the extreme weight loss.

The actions of the Michigan officials, in the face of clearly established federal law and Department of Corrections policy, as well as strong evidence of deleterious effects on the prisoners’ health, suggests a kind of intentionality and lack of respect for the prisoners’ claims today that is reminiscent of the way prison officials treated the Nation of Islam in the 1940s and 1950s. Muslims and civil rights lawyers, both inside and outside the prison system, should vigilantly guard against such blatant disrespect. Perhaps the next case in Michigan, alleging such behavior, should not be settled.


Bernard Freamon is a Professor of Law at Seton Hall University specializing in evidence and legal philosophy, with emphasis on Islamic Jurisprudence and Islamic Legal History.

[1] Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Cambridge, MA.: Harvard University Press, 2010) 97.

[2] See, e.g., Tabor v. Hardwick, 224 F. 2d 526, 529, (5th Cir. 1955) (control of federal prisons is entrusted to Attorney General and Bureau of Prisons and courts should not interfere with their decisions except in extreme cases).

[3] Heard v. Finco, 2014 WL 1347432, at *1 (W.D. Mich., March 31, 2014).