A Landmark Legal Ruling: Who is a Jew in the Federal Prison System to Be Determined by Rabbis, Not B

The Federal Bureau of Prisons has recently agreed, after a lengthy legal battle, that the question of "who is a Jew"–and thus eligible for kosher food–will not be determined by prison officials, but by religious authorities. It will send a directive to this effect to all prisons in the federal system.

The action came about as a result of a court case triggered in 1980 when prison officials at the Federal Correctional Institution at Texarkana, Tex., decided that none of the participants in the kosher food program were Jews, and removed them from the program, in effect, closing it down.

Clifford Noe, one of the then-inmates–who had declared himself a Jew and had participated in the kosher food program–sued the prison system on grounds that his First Amendment rights were violated. Robert Roach, Jr., of the Houston law firm of Mayor. Day and Caldwell, who has represented Noe on a pro bono basis, told the Jewish Telegraphic Agency that a Constitutional issue was at stake here: "The government or any of its agencies should not decide who is a member of a religion."

Federal prison system regulations, arising out of 1976 court cases, mandate that inmates are entitled to full kosher meals within 15 days of signing a statement that they are Jews and request such food, said Roach. The rules say nothing about verifying Jewish background.

BACKGROUND OF THE CASE

Noe, he said, was admitted to the kosher food program at Texarkana prison in 1979. The next year, he made several complaints to the warden; one was that the prison had inadequate facilities for keeping kitchen equipment, used to prepare kosher food, clean; another was that the food–cheese, frankfurters and sardines–was not comparable to that served to non-kosher inmates.

Prison officials, however, responded only to Noe’s third complaint: that non-Jews were in the kosher food program and were flaunting their non-Jewishness. Deciding to determine "who is a Jew," prison officials turned to a local Texarkana rabbi, and later, to Rabbi Uriel Smith of Shreveport, La.

Both rabbis turned down the idea of testing the inmates to discern whether they were Jews, on grounds that this is against Jewish law except when someone is about to marry. Smith, as well as Rabbi Ted Sanders, the Jewish chaplain for the state prison system, later testified in court to this effect.

Turned down by the two rabbis, the prison officials called upon Dr. David Geigerman, a Texarkana anesthesiologist who served at the time as president of the local B’nai B’rith chapter. Geigerman spoke with the nine or 10 inmates in the kosher program for several minutes, said Roach, asking them to translate some Hebrew and provide information on several Jewish festivals. He concluded that none of them was Jewish.

Geigerman later testified in court that, had he been informed that to be eligible for the kosher food program a prisoner did not have to be knowledgeable about Judaism or to have kept kosher before applying for it, he would not have acted as he did, Roach told JTA. Hospitalized in an intensive-care unit, Geigerman could not be reached for comment.

STIPULATION BY PRISON OFFICIALS

After Geigerman reached his decision, prison officials removed the inmates from the kosher food program and it became "inoperative," said Roach; it was resumed later, however. The prison stipulated that if the inmates wanted to be considered Jews, they would have to take religion classes from Geigerman.

Such state-sponsored religion classes, said Roach, are unconstitutional, as is the government being involved in determining who is a member of a religious faith.

Noe took the case to court–as did another inmate who later dropped out of the subsequent legal battles. He named the warden, prison chaplain, and Geigerman as defendants.

After the case went through three courts, and three days before a fourth was to consider it, the defendants settled out of court.

TERMS OF THE SETTLEMENT

The terms of the settlement–the "consent decree"–requires the Federal Bureau of Prisons to send a directive to every one of its facilities in the U.S. stating that before any inmate can be declared ineligible for the kosher food program because he is not Jewish, the prison officials must consult with a rabbi and give the rabbi’s opinion great weight.

The federal prison system must prove that this directive was issued within 90 days of the signing of the settlement agreement. It must be posted in the prison law library, said Roach, kept with the other regulations there, and made available to all prisoners.

"The federal prison system has now been educated" on this issue, Roach told JTA. "They will never again decide unilaterally if someone is a member of a religious faith or not and will, instead, defer to that faith’s religious authorities." Noe, he added, was also "very satisfied" with the settlement agreement.

Sanders, calling this a "landmark" decision, said it means that no prison officials "can deny any kosher food to a prisoner on the basis of what he knows about his religion," and that "nobody can declare him a non-Jew except a rabbi." Prisoners who say they are Jews will have to be provided with kosher food if they demand it, without proving they are Jews, Sanders said.