SUR PETITION FOR REHEARING
Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Frank "X" St. Claire in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Chief Judge Seitz and Judges Adams, Gibbons, Higginbotham and Sloviter would grant the petition for rehearing.
Opinion SUR DENIAL OF PETITION FOR REHEARING
I dissent from the denial of the petition for rehearing because in my view this case should be reheard before the Court in banc. This is so since the decision by the panel would appear to overrule previous holdings by this Court, to misapply Supreme Court opinions that do not consider the extent of prisoners' rights to observe their religion, and to transgress the precept that reviewing courts shall respect the factual findings of trial courts.
The right to exercise freely the religion of one's choice is, of course, among the most jealously guarded in the pantheon of constitutional protections.*fn1 The panel denominates as a "truism" the principle that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement." 3 Cir., 634 F.2d 109 at 112. This axiom undoubtedly extends to the First Amendment right to observe the tenets of a freely chosen and sincerely held religious faith. Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972). Under the standard applied by the panel, however, this truism is denuded of any real content. Instead, the panel holds that "the state needs only to produce evidence that to permit the exercise of first amendment rights would create a potential danger to institutional security." At 114 (emphasis added). Such a standard would seem to exhibit a lack of regard for the right of prisoners to retain some degree of protection for their religious freedom. In adopting a rule of complete deference to the conjecture of prison officials, the panel fails to apply in any substantial way the counsel of the Supreme Court that there must be an accommodation between the important constitutional rights of inmates and legitimate penological objectives. Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935 (1974).
In order for this accommodation to occur, a prisoner's right to observe his religion should be more than merely acknowledged in passing; it should receive at least a minimal degree of meaningful protection. Yet under the test announced by the panel there is no room for such recognition or accommodation if a prison official is able to speculate that religious observance might implicate security interests. Virtually every practice in a prison has some bearing on security concerns; thus, it would be an unimaginative prison official who could not conjure up a potential security concern underlying any particular restriction. For example, officials no doubt could say that to permit inmates to gather and observe religious faiths in any fashion might create a potential danger to institutional security.
The standard announced by the panel, which virtually eviscerates protection for the First Amendment free-exercise rights of prisoners, would appear to overrule several prior decisions by this Court. The Third Circuit precedent setting forth the rule by which this Court is to evaluate the validity of prison regulations alleged to infringe the free-exercise of religion is O'Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973). In O'Malley we held that "the state may not interpose an unreasonable barrier to the free exercise of an inmate's religion." We went on to state that "the factfinder shall find the regulation to be reasonable only if the alternative chosen ... resulted in the least possible "regulation' of the constitutional right consistent with the maintenance of prison discipline." Id. at 796.
The panel seeks to distinguish O'Malley from St. Claire's case on the basis that the factual record in the earlier situation was more sparsely developed than the current record. At 112. The panel does not consider, however, the recent decision in Rhodes v. Robinson, 612 F.2d 766 (3d Cir. 1979). Although Rhodes dealt with First Amendment rights generally, rather than the specific right of free-exercise, it is equally applicable here, because it follows and further refines the rule of the earlier case. In Rhodes, Chief Judge Seitz restated the governing standard in this Circuit for evaluating restrictions on First Amendment rights of prisoners. On behalf of the Court, Chief Judge Seitz held that to be constitutionally permissible, such restrictions "must further "an important or substantial governmental interest ... unrelated to the suppression of free expression,' and the restriction must be "no greater than is essential to the furtherance of that interest.' " Id. at 770. This standard, although employing somewhat different language, is substantively the same as that of O'Malley. Rhodes thus constitutes the existing law of the Circuit in the area of the restrictions on prisoners' First Amendment rights. Moreover, Rhodes, announced subsequent to the recent relevant Supreme Court cases, considers and incorporates the applicable teachings of Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977); and Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) three of the recent Supreme Court cases dealing with constitutional rights in the prison context.
Ironically, the panel attempts to justify its disregard of O'Malley and Rhodes on the basis of these same Supreme Court cases. But neither Bell nor Jones were concerned with the scope of protection for the important rights flowing from the religion clause of the First Amendment. Thus, they should have little direct bearing on the present case. In Bell v. Wolfish, the Court's task was to determine whether pretrial detainees had been "punished" in derogation of due process of law. The due process right at stake was somewhat nebulous, predicated primarily on a presumption of innocence. Specifically, the detainees complained of a variety of practices that diminished the comfort and privacy of their confinement. These rights, implicated in Bell, were not as securely rooted in the Constitution as the specific textual guarantee of free exercise of religion asserted by St. Claire. In the portion of the Bell opinion that did touch on First Amendment rights where the detainees challenged a rule prohibiting the receipt of books or magazines unless mailed from the publisher or a book club the Supreme Court stressed the availability of alternatives provided by the prison that enabled the detainees to obtain the desired reading material. Essentially, the Court regarded the "publisher-only" rule as a valid time-place-or-manner restriction. The absolute prohibition of religious headgear, which operates as a complete barrier to St. ...