Rules Are for Schmucks: Choosing Your Own Prison Guard

I took my nephew to the zoo once when he was three years old. We had a fine time. As we were leaving, he spied a puddle on the sidewalk, made a beeline for it, and splashed about gleefully. Once in the car, though, he began crying and complaining because now his socks were all wet.

This approximates the maturity level of our highly paid members of Congress, who spent last month crying and complaining about a judge who had the temerity to enforce a law they themselves had written, and then had done nothing at all to correct in the full year since its lunacy had become manifest. The nerve!

The law in question is RFRA, the “Religious Freedom Restoration Act of 1993,” which was passed almost unanimously by a Democrat-controlled Congress and signed into law by President Clinton. The particular application in question involves prisoners at Guantánamo, including the infamous Khalid Sheikh Mohammed, alleged to be the operational mastermind behind the September 11 attacks. These prisoners object on religious grounds to being escorted from place to place by military guards who are female. That involves the sin of being touched by a woman, albeit one wearing gloves, grasping only the prisoner’s elbow. The taxpayer-paid “Muslim cultural advisor” hired by the military says there is actually nothing in Islam forbidding women from touching men, e.g., female nurses taking a male hospital patient’s pulse, so long as there are no sexual overtones. Doesn’t matter. These prisoners found another way to throw sand in the gears, so they took it. The timeline is that this controversy began over a year ago, in October 2014, when a prisoner refused to cooperate with a female guard attempting to shackle him for transport. A military judge promptly issued an injunction against female guards touching male prisoners. In November 2014, the judge considered the matter more carefully and re-issued the order. All this was in the news, for any member of Congress who is able to read. Last January, a different military judge dealt with the same issue and reached exactly the same conclusion. Again, this was all over the news. Neither judge is a biased Islamophile or an idiot; both were simply following the plain meaning of RFRA, exactly as Congress wrote it. RFRA says no agency of government can “substantially burden” the “exercise of religion” unless it both has a “compelling interest” in doing so and has chosen the “least restrictive means.” Prison officials do have a “compelling interest” in moving prisoners from point A to point B sometimes. But using female guards is not the only way to accomplish this. There are plenty of male guards around—in fact the majority of Guantánamo guards are male. So, the judges reasoned, the least restrictive means of accommodating the prisoners’ religious objections is to have them escorted exclusively by male guards. The reasoning is virtually identical to that of the Supreme Court in Holt v. Hobbs, in which a violent prisoner was given the privilege to wear a beard in a prison where beards were banned for everyone else, because he said his religion required it. Thankfully for the security of our country, the women in our military are not easily intimidated. After the January ruling, several women filed a gender discrimination suit on the grounds that the barrier to doing their jobs on specious gender-related grounds interferes with their ability to advance within the military. As their commander put it, “We have a motto, ‘One team, one fight.’ Now I have one male team and one female team.” Though I haven’t seen it, I’d like some of the male guards to file a suit as well. The harm to them is even more immediate: why should they have to do extra work, escorting more than their fair share of these highly unpleasant prisoners, simply because of their gender? What’s fair about that? This would be similar to another recent case involving a Muslim flight attendant who decided that she didn’t want to serve alcohol to the passengers on her plane. She dumped the work that involves onto the other flight attendants, one of whom became my instant hero by filing a complaint. Why should one person have to do extra work to accommodate some other person’s religion? In case I ever get caught having too much fun and have to go to jail, here is my religious requirement, so everyone will know in advance. My religion requires that I be dealt with only by friendly guards. No sourpusses! Either gender is OK (although female would be better), but the real key is they have to smile and be chipper throughout all our interactions. As I will in return. This is a much better religious requirement, all-round, than that of most other privilege-demanding prisoners. In a simpler time, when no less a religious authority than Pope Pius XII asked that no black troops be assigned to occupy Rome, his request was denied. Under RFRA, he would probably have much better luck. Anyway, after all these months of disputes, motions, rulings, and countersuits, at a late October hearing several senators expressed their shock and dismay that military judges are actually carrying out the provisions of RFRA, a monstrous law that only the senators themselves can repeal. The grandstanding opportunity was so juicy that three of them—Kelly Ayotte (R-NH), Tim Scott (R-SC), and Shelley Moore Capito (R-WV)—went on to stage a whine-fest press conference afterward, spouting things like “I am deeply concerned with a court order that prevents female service members from doing their jobs and serving in the same capacity as their male counterparts.” “Deeply concerned,” but not concerned enough to actually do anything about it, like repealing RFRA. Members of Congress, may you live in wet socks until you get this fixed.Tags: RFRA