"A Different Kind of Prisoner’s Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons"

For any interested MOJ readers, my Note entitled “A Different Kind of Prisoner’s Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons” was recently published in the Notre Dame Law Review and can be found here.  An abbreviated abstract is pasted below.

How should one understand the right to the free exercise of religion for incarcerated persons?  Scholars typically analyze the right to freedom of religion in two distinct ways—either as a constitutional right or as a fundamental human right.  And yet, the former should be understood as a positivized protection of the latter.  This Note analyzes a prisoner’s right to the free exercise of religion in the context of a prisoner’s right to a preacher and a place to worship.  In doing so, it separately analyzes the constitutionally protected right in the United States and the internationally protected human right in the context of the European Court of Human Rights.  However, in concluding, it demonstrates that the constitutional right and the international human right are fundamentally one and the same.  And, of even greater importance, it shows that the underlying protections owed to incarcerated persons are the same, regardless of the analytical framework. 

In sum, this Note argues that international courts, U.S. courts, and well-positioned political and legislative bodies should continue to advance the proper understanding of the right to the free exercise of religion and faithfully apply it to one of the world’s most vulnerable populations—prisoners.