Discrimination Between Muslim Prisoners’ Kufis and Jewish Prisoners’ Yarmulkes Is Unconstitutional

Start at Washington v. MooreWednesday, December 3, 2006 by Judge George Caram Steeh. Mich.):

Plaintiff John Patrick Moore, II is in the custody of the Michigan Department of Corrections (“MDOC”)…. Moore, a Sunni Muslim devout and practicing Sunni Muslim, claims that he was denied the right to wear a Kufi while in prison because of MDOC policies. {The MDOC changed their policy in February 2021 and now permits male Muslims to always wear a kufi.} …

Judge of the Magistrates Court found that there was ample legal precedent that would have warned officials that banning Muslim prisoners wearing kufi would be a violation of their Constitutional rights. The court looked at Sixth Circuit caselaw, which held that prison regulations violating prisoners’ religious convictions “without any valid penal justification” was prohibited by the Free Exercise Clause.

MDOC must establish a valid, rational connection to the First Amendment in order for MDOC regulations to be allowed under that amendment. The governmental goal must also be legitimate and neutral. Turner v. Safley(1987) (citations and quotations omitted). Adrian Dirschell (current special activities coordinator at MDOC), testified in defense that he was not convinced that Islamic law demanded followers wear a kufi. That kufis were similar to yarmulkes, and that it was difficult for people to tell the differences. There wasn’t any security difference between the headgear. Sixth Circuit ruled that the true religious beliefs of an individual determine the requirements for a religion. Not what MDOC believes is necessary.

MDOC Deputy Director of Correctional Facilities Administration Jeremy Bush stated that any prisoner adding a layer of clothing to his body creates an opportunity for him or her to conceal contraband. Bush admitted that he didn’t know anything about kufis or the MDOC’s reasons for restricting when they can be worn. The magistrate dismissed this testimony. However, Campbell, the ARF Warden, denied that the discussions regarding the limit on wearing kufis was about concealing contraband. MDOC personnel further testified that kufis were “very similar” to yarmulkes, and that they pose no distinct security threat. Moore’s deeply held religious beliefs have been ignored by defendants.

Next defendants claim that there was no law prior to February 22, 20,21 that stated that prison inmates had the right to wear a kufi. This analysis will examine whether defendants are able to prove a legitimate penological basis for restrainting Moore’s rights to always wear a kufi. As discussed above, defendant’s penological reason proffered for treating Muslims’ and Jews’ headgear differently is not sufficiently supported for the Court to conclude that defendants did not violate Moore’s constitutional rights….

[As to the Equal Protection Clause, o]Again, defendants depend on their Islamic law knowledge and their alleged rational reason to support the good faith base for treating headgear of Jews and Muslims differently. The courts will treat as invidious any class that is presumptively disadvantageous to a “suspect group” or which impinges upon the exercise a “fundamental right.” The policy at issue made a facially discriminatory distinction between Jewish men, who could wear their religious head coverings at all time, and Muslim men, who could wear a kufi only in their cells or around religious activities….