Jon Campisi Apr. 30, 2014, 2:17pm


A three-judge Commonwealth Court panel has issued a mixed ruling in the

case of a prison inmate challenging a state Department of Corrections policy forbidding conjugal visits and other regulations that the plaintiff says hampers his ability to practice his religion.

Gregory Thomas is suing Gov. Tom Corbett, Corrections Secretary John E. Wetzel and other prison officials over a policy prohibiting conjugal visits for all inmates.

Thomas, who is Muslim, claims the conjugal visitation policy has a detrimental affect on his marriage because his wives – multiple spouses are allowed in his religion – are threatening to divorce him under Islamic rules if they are unable to have intercourse with him.

The plaintiff asserts that the policy constitutes an unconstitutional infringement on his rights under the First Amendment to practice his religion.

Thomas, who also says the policy is discriminatory and violates equal protection because the homosexual prison population can engage in sexual conduct with one another, additionally claims the conjugal visit policy violates the Religious Land Use and Institutionalized Persons Act.

The Department of Corrections filed preliminary objections to the complaint challenging the legal sufficiency of the plaintiff’s claims.

In their April 29 ruling, the three Commonwealth Court judges sustained defense preliminary objections to Thomas’s constitutional claims relating to his desire for conjugal visits but overruled the defendants’ objections to the RLUIPA claims.

In their ruling, the judges cited the fact that courts have already held that a correctional institution’s policy banning conjugal visits does not deny an inmate any constitutional rights, “thus, Thomas cannot prevail on his constitutional challenges to the policy.”

As for the second claim, that the policy violates the RLUIPA, the panel wrote that the Department of Corrections does not, at this point in the litigation, challenge either the nature of Thomas’s beliefs or whether the prohibition constitutes a substantial burden on such beliefs.

“Thus, for purposes of evaluating DOC’s preliminary objection, we presume that Thomas has pleaded sufficient facts to demonstrate that DOC’s conjugal visit policy substantially burdens Thomas’s exercise of sincerely held religious beliefs,” the ruling states.

The judges, citing case law, wrote that in the context of a constitutional challenge, they could not accept the DOC’s concerns about prison security, which they cite as the reason behind the policy, as fact for the purpose of the preliminary objections to the plaintiff’s RLUIPA claims.

“Essentially, DOC is suggesting we accept on faith the veracity of these assertions,” that the department has a compelling reason for imposing the ban on conjugal visits, the court wrote.

“Congress, however, in adopting the ‘compelling interest’ standard in RLUIPA … intended to impose a more demanding evidentiary standard on a governmental agency or official when they create a substantial burden on a person’s religious freedom, in comparison to the standard developed under the First Amendment.”

The judges wrote that if they were to consider the DOC’s “bald assertions” regarding a compelling institutional purpose for prohibiting conjugal visits, they would be denying Thomas any opportunity to carry his burden of persuasion on the issue.

The panel also pointed out that the RLUIPA requires that the means the governmental agency has chosen to serve the compelling interest is the least restrictive means available to accomplish the objective, in this case, security of prisoners and staff.

The DOC in this case, however, “failed to even argue that its means is the least restrictive method by which to accomplish its alleged compelling governmental interest,” the court wrote. “DOC simply is not entitled at this early stage of the proceedings to dismissal of Thomas’s RLUIPA challenge to the conjugal visit policy.”

Thomas had also challenged other prison policies, including the ban on prayer oil, saying the oil is necessary because without it, “the jinn is all around,” which the plaintiff claims prevents his prayers from being answered.

The DOC says the oil could mask the smell of illegal drugs and that it is dangerous because it is flammable.

The court sided with the defense, writing that none of the factual averments in the complaint demonstrate any of the elements necessary for success on a claim under the Eighth Amendment for unconstitutional conditions of incarceration relating to the prayer oil policy.

The decision was written by Commonwealth Court Judge P. Kevin Brobson.

Joining Brobson were Judges Bernard L. McGinley and James Gardner Colins.

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