By Expert: Tate McCotter, NCCE
It’s been a few years since the United States Supreme Court announced their controversial decision ruling that the U.S. Constitution provides same-sex couples the right to marry1. The court ruled 5-4 that the Constitution’s guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages. The landmark ruling made gay marriage legal in all 50 states.
This Supreme Court ruling provides jail administrators with an opportunity to revisit and update their marriage policies as needed in accordance with current law. However, there are a number of correctional facilities that still have not adopted or established policies for handling inmate marriage applications and conducting inmate marriages. Other facilities have very limited descriptions, often failing to address the processes associated with the policy. I have seen more than a few dozen policies and inmate handbooks that include limited terminology, such as– “You may be granted permission to be married only under certain conditions. See your chaplain for specific details.”
While I fully support policies that provide for administrative discretion, it is always important for staff and administrators to understand and know the laws and have processes in place that allow for defensible, informed decision making. Those that answer grievances can certainly attest to the value of this principle.
As part of jail administrative policies, officials should recognize that inmates have a fundamental right to marry that is not extinguished as a result of incarceration2. The Supreme Court in its recent decision referenced Turner v. Safley, which established marriage as a right for those incarcerated. Marriage is “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”3 According to the Supreme Court in the Turner decision, Missouri officials provided no legitimate penological interests4 that were more valid than the important attributes of marriage that remain,despite the limits imposed by incarceration.
As explained in the NIJO Legal-Based Jail Guidelines P01.02.02 – Denying Marriage Applications, officials should provide any criteria that justifies denying an inmate’s marriage application5. The Supreme Court in the Turner v. Safley ruling said that it was very possible some legitimate security concerns may require placing reasonable restrictions upon an inmate’s right to marry,and may justify requiring approval of the facility administration6. It did not suggest what those circumstances may be in justifying a denial. Some reasons may include a legal restriction to the marriage or the proposed marriage presents a threat to the security or the good government of the institution or to the protection of the public. Some states, like Texas, have specific laws that address the use of proxy marriages that must also be considered.
Because of the Supreme Court ruling on gay marriage, policies should be updated and not be gender restrictive between the two parties.7 Those that fail to adhere may be at risk with potential inmate filed litigation.
Even prior to the June 2015 Supreme Court decision, homosexual marriage applications were submitted to corrections officials for approval in the state of Hawaii between two female inmates. Same sex marriage was ruled legal in Hawaii since December 2, 2013. According to officials, 28 year old Terann Pavao and 40 year old Totie Tauala completed all the necessary paperwork with the Department of Public Safety and received their marriage license from the state. As it hit the media, the facility explained the process to the public:
“They’ll be in their prison garb. They’ll be an officiant there that they arranged to come in and they have two witnesses and of course, facility staff on-hand to witness what is happening. They will also be allowed to exchange wedding bands, but there’s no fruit punch or cake or anything like that.”
– Eric Tanaka, the Acting Warden at WCCC.
Pavao had two years left on a variety of drug-related convictions, including assault and theft. Tauala was halfway through a 20-year sentence for manslaughter, eligible for parole in 2019. Post wedding, the warden said they received no special treatment as a married couple. Officials said they are not housed together and both state and federal law prohibits inmates from engaging in any sexual acts.
In policies, corrections officials should establish and adopt policies and procedures for processing marriage applications reasonably. This will ensure that they are handled properly and consistently, according to established law and criteria set forth by the administration. If a marriage application is denied, the reasons should be made available to the inmate in written format, filed and recorded for documentation. Inmates should be afforded the opportunity to file a grievance and use that established process to challenge the finding if they desire.
Likewise, the process for conducting marriages should also be set forth. Marriage ceremonies, just like the free world, can get emotionally charged and difficult to manage, especially considering lofty expectations that may be presented by family and friends of those involved. Jail staff are not trained wedding planners, nor should they be expected to become such. The right to marry does not establish the right to conduct a wedding according to the exact wishes of a bride, groom, or mother of the bride. The ceremony should be conducted in a manner that does not degrade facility security, safety, order, discipline or control. Certainly an administration has the right to make limitations to a ceremony accordingly. These limitations may include the time it is conducted, allocated time to conduct the wedding,the number of witnesses and attendees. The dress and appearance of attendees and participants should also be in accordance with visitor dress code policies. Things like throwing glitter and other secular wedding traditions may be prohibited if they violate or otherwise degrade safety security and order or become a hardship on staff.
Another issue that may come into play is working with various religious requests associated with the wedding ceremony. In such cases,pay close attention to the requirements set forth under RLUIPA. 8 This establishes a different standard than claims brought under 1st Amendment rights. Officials should be prohibited from imposing a substantial burden on the religious exercise of inmates, unless officials demonstrate that the imposition of the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.9
Regardless of the size of jail and available resources, administrations can craft policies and procedures that allow for inmates to marry without compromising these standards. Take the time to look over existing policies and get them current with case law. While inmate marriage requests do not always occur frequently, they will happen. Administrations who have updated policies and policies can act in confidence and in compliance with what the law requires, potentially saving them hundreds of hours and thousands in litigation costs.
ABOUT THE AUTHOR:
Tate McCotter, NCCE, CJE is the Executive Director and CEO for the National Institute for Jail Operations (NIJO). He has presented and trained on legal-based jail standards,policy and procedure development, creating constitutionally safe jails, PREA, and auditing and inspection programs at numerous national conferences, state sheriff association meetings, state jail administration seminars and other training venues for correctional staff and administrators.
- Obergefell v Hodges, 576 U. S. ____ (2015)
- Turner v. Safley, 482 U.S. 78, 95 (1987)
- Loving v. Virginia, 388 U.S. 1 (1967), quoting, Skinner v. Oklahoma, 316 U.S. 535 (1942)
- Turner v. Safley, 482 U.S. 78, 97 (1987).
- See generally NIJO Legal-Based Jail Guidelines Sec.P01.02.02 – Denying Marriage Applications
- Turner v. Safley, 482 U.S. 78, 97-98 (1987)
- Obergefell v Hodges, 576 U. S. ____ (2015)
- 42 U.S.C. § 2000cc-1(a)(1)
- 42 U.S.C. § 2000cc-1(a)(1)