PHILADELPHIA (Legal Newsline) - A Muslim man's decade-long quest to have sex with his wife has been given a small measure of new life by a federal appeals court that says Pennsylvania must prove it would be a bad idea.
Conjugal visits are among the requests made by Fernando Nunez that were refused by Pennsylvania's prison system, which does not allow them. But the federal Religious Land Use and Institutionalized Persons Act protects inmates hoping to practice their religions.
Nunez was sentenced to life in prison after a July 2002 murder conviction, then converted to Islam and married in 2013. Two years later, without the aid of a lawyer, he sued the state Department of Corrections over its denials of his religious requests.
They were to consummate his marriage and be allowed periodic conjugal visits, pray with his family when they visited and be circumcised. He says he has worried that his faith has gone unrewarded because Muslims must be circumcised.
Unfortunately for him, the DOC denied all of these. The state does not allow conjugal visits for inmates, and the DOC said privacy between two parties would make smuggling contraband easier.
The DOC said group worship would distract other inmates visiting loved ones and circumcision is "elective" and not "medically necessary." Harrisburg federal judge Jennifer Wilson ruled for the DOC in 2022, finding its reasons compelling and that no less restrictive alternatives were available.
But the U.S. Court of Appeals for the Third Circuit vacated that decision on Aug. 27 in an opinion authored by Judge Cheryl Ann Krause. It found Judge Wilson had not put the DOC to its burden and must supplement her record, which would likely be appealed again.
"To be clear, we are not holding that the DOC's denials of Nunez's requests cannot satisfy strict scrutiny if properly supported on remand," Krause wrote.
"What we do hold is that this determination cannot be made on the current record and that... the DOC should have the opportunity to supplement the record before renewing its motion for summary judgment."
The DOC has said it has "several legitimate penological interests" in denying conjugal visits, but the RLUIPA requires it to show a "compelling government interest," the Third Circuit ruled.
"And applying the proper test, the DOC has not even attempted to put forward actual evidence that denying Nunez's request furthers its interests, or that there are no less restrictive means available."
The DOC has not showed Nunez presents a risk of acquiring contraband during a conjugal visit, as Nunez has faced no disciplinary action while an inmate. Nunez has asked for extra security or regulating the types of clothing and accessories his wife would wear to the visit.
Though self-represented in the trial court, D.C. lawyers from Sidley Austin took up his appeal. Only four states - California, Connecticut, New York and Washington - allow conjugal visits. The federal prison system does not.
As for group prayer, Nunez suggests non-contact visitation rooms when they are empty. For circumcision, Nunez says the DOC's Access to Health Care policy allows for "elective" surgeries like abortions.
The DOC said it must deny requests because of finite resources and that the circumcision would cost $3,500.
"But this argument fails to distinguish between cosmetic circumcision and religious circumcision, and the DOC has not shown how its interest in conserving resources is advanced by denying Nunez a lone religious exemption from the policy," Krause wrote.
"It hardly seems a reasonable forecast that granting him an accommodation would prompt a multitude of other prisoners to request a religious circumcision."