By Tate McCotter, NIJO Executive Director
On June 26, 2015, the United States Supreme Court announced a 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. With the landmark ruling, gay marriage became legal in all 50 states, leaving jail administrators with the necessity to revisit and update their marriage policies according to current established law.
Interestingly, there are a number of correctional facilities that have not adopted or established policies for handling inmate marriage applications and conducting inmate marriages regardless of whether they are same-sex or not. Some 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.”
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, prior to the Supreme Court decision. 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.
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.
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.
In consideration of policies and processes, note that some states have passed specific laws that provide additional requirements and rulings affecting inmate marriages, including the use of proxy marriage and otherwise. In addition to the information being discussed below, administrators should be familiar with those laws specific to their states.
- Correctional 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 Obergefell ruling 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. Certainly length of stay is a factor in performing a marriage in a jail, as marriages may take a determined amount of time to process. However, having a blanket “we don’t do weddings in our facility” policy may open the door to litigation.
- 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.
- The process for conducting marriages should also be set forth by the administration. 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 not 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 a marriage 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
- 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. Safleyruling 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.
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.
- 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).
- 42 U.S.C. § 2000cc-1(a)(1)
- 42 U.S.C. § 2000cc-1(a)(1)
- 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)