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On The Front Lines

Appeals Court Agrees: First Amendment Requires Jail Officials to Treat All Religious Beliefs Equally


Emad v. Dodge County

Rodriguez v. Burnside

CHICAGO, IL — Recognizing that the First Amendment requires the government to treat all religious beliefs equally, a federal appeals court has ruled against a Wisconsin jail for leaving a Muslim prisoner no choice but to pray next to the toilet in his cell while jail officers allowed Christian inmates to gather for Bible studies and prayer in a communal area.

Agreeing with The Rutherford Institute’s arguments in Emad v. Dodge County that government officials should not be allowed to feign ignorance or use qualified immunity to shield them from liability when they violate the First Amendment, especially when there is a clear constitutional violation and plenty of time for government officials to consider their course of action, the Seventh Circuit reversed a lower court’s grant of qualified immunity to jail officials, stating that “if free exercise [of religion] in jail means anything, it means that jailers…cannot treat inmates differently based on religion.”

“The First Amendment not only affirms the right to religious freedom for people of all faiths, but it also requires that the government treat all faiths equally and not favoring or disfavoring one over the other,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This is the slippery slope that affects us all, whether you’re talking about religious freedom, free speech or privacy: if the government is allowed to deny freedom to one segment of the citizenry, it will eventually extend that tyranny to the rest of us.”

Although the Dodge County Detention Facility in Wisconsin has a policy prohibiting “personal worship” in the dayroom common areas, jail officers permitted Christian detainees to participate in Bible study and communal prayer in the dayroom. Emad, a practicing Muslim, was a civil immigration detainee at the jail from March 2018 to May 2019. As part of Emad’s religious practice, he prays at five prescribed times each day. Emad believes that such prayers must be done in a clean and pure environment; thus, prayer in a room with a toilet is prohibited and considered unclean. Additionally, Emad believes he is required by Islam to attend a weekly sermon and congregational prayer with two or more people on Fridays. Emad’s requests to pray outside of his cell in an area without a toilet were denied by jail officials, as was Emad’s request to pray with other Muslim detainees. Emad sued the jail for substantially burdening his First Amendment right to the free exercise of his religion. While the trial court found that the jail did not have a sufficient justification for refusing to allow Emad to pray in other areas outside his cell, it granted qualified immunity to jail officials and dismissed the case. On appeal, the Seventh Circuit Court of Appeals reversed the lower court’s ruling, acknowledging “the robust legal protection that attends to…the right to worship free of discrimination based on one’s choice of faith.”

While Emad secured a religious freedom victory for inmates before the Seventh Circuit, the U.S. Supreme Court refused to hear an appeal in Rodriguez v. Burnside arising out of an Eleventh Circuit ruling, which The Rutherford Institute warned would effectively validate unconstitutional jail policies by reducing standards to create a “test under which the government will undoubtedly always win” in its refusals to grant inmates’ requests for religious accommodations.

Paul R. Steadman, Emma Cone Roddy, and Sean O’Neal of DLA Piper helped advance the amicus arguments in Emad v. Dodge County, which is available at Theodore A. Howard, Krystal B. Swendsboe, and William Turner of Wiley Rein advanced the amicus arguments in Rodriguez v. Burnside on behalf of The Rutherford Institute and the Jewish Coalition for Religious Liberty.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

January 20, 2023 • TRI Warns Jail Officials: The First Amendment Requires the Government to Treat All Religious Beliefs Equally


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