How do religious beliefs decide what prisoners and patients eat? Two recent court cases in Virginia pit religious diets against the need to serve diverse populations in public institutions. In one case, a prison inmate has requested kosher food, while in another, the parents of a severely disabled patient in a state facility have sued for a diet and manner of feeding consistent with Jain beliefs. Like other disputes over religious freedom, the cases share more than food in common with the 2018 case about a wedding cake for a gay wedding, Masterpiece Cakeshop v. Colorado Civil Rights Commission: “sincerely held” religious beliefs. In cases that attempt to serve the “free exercise” of religion without its “establishment,” sincerely held religious beliefs have become standard fare. 

But how can the state judge religious sincerity while claiming religious neutrality? I was recently asked to provide a letter supporting the Virginia prisoner’s request for a kosher diet. The inmate, a convert to Orthodox Judaism, complained that the prison had offered the “common fare” diet, which is designed to accommodate kosher and halal diets. In order to join the common fare program, prisoners must claim membership in an approved list of religions and eat only the common fare offerings. The extensive procedures for preparing, cleaning, and separating common fare foods follow many rules for kosher food preparation, but common fare ingredients such as meat and cheese may not themselves be certified as kosher. 

The prisoner cited Estes v. Clarke, a 2018 case from the District Court for the Western District of Virginia, which supported a prisoner’s request to replace common fare food with certified kosher meals. But in spite of Estes v. Clarke, the prisoner has so far not been given a kosher diet. His food service director argued that the process of identifying vendors and providing the food was too time-consuming. Now housed in a new prison, the inmate has repeated his request only to receive a strictly vegetarian, soy-based diet rather than one that is specifically kosher. 

The problem is not limited to prisons. In another current case, Gupta v. Commonwealth of Virginia, the Jain parents of a young woman who requires round-the-clock care have petitioned on her behalf for food (a lacto-vegetarian diet free from garlic, ginger, and onion) and feeding by hand (rather than machine) consistent with their daughter’s sincerely held religious beliefs. As with the prisons, the public medical facility claims the family’s request is too burdensome and expensive.  

It can be tempting to exploit the standard of sincerely held religious beliefs. In the television series Orange is the New Black, a prisoner who had feigned Jewish identity to receive coveted kosher food later converted wholeheartedly. The problem also extends to the private sector. I often request “Hindu” meals on international flights simply because I like the food. When my meal arrives (long before others are served), I can detect surprise and mild resentment from passengers and staff alike. One flight attendant, apparently confused by what a Euro-American passenger like me had ordered, shouted to no one in particular, “What do Hindus eat?” The accommodations listed by one airline include “Asian Vegetarian,” “Hindu (Indian) Vegetarian,” “Kosher,” “Muslim,” “Japanese,” “Jain,” vegan, vegetarian, gluten-free, and “Child” options. Nowhere does the selection process require passengers to justify their requests as sincere, but the obscure online ordering system seems to discourage frivolous requests based only on preference. 

Rooted in religious tradition, especially Christianity, the concept of sincerity resists detection and cuts across partisan lines. Those who trust the patient and the prisoner may scoff at the withholding cake baker. But in the Masterpiece Cake case, Justice Kennedy wrote, “The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions.” How did he know? How can we ever know?

Although sincerity and insincerity resist verification by judges and bureaucrats, the Constitution leaves them few alternatives. Like airlines that offer a wide range of meal options, the United States opened itself to expensive and expansive requests for religious accommodations through the free exercise clause and cases elaborating it. If religious exercise is free, then so are endless varieties of dietary options, some of which insincere people will find appetizing.

These cases expose the fragility of the sincerity standard, confirming what Winnifred Sullivan, Talal Asad, and others have demonstrated in their studies of state law and religion. They also show the degree to which the problem continues to generate confusing and expensive legal conundrums. But instead of litigating every case of possible insincerity, public and private institutions could pursue another set of principles rooted in religious traditions: reciprocity between host and guest. This might begin with open dialogue between administrators and residents of institutions to enhance transparency and shared responsibility. Though harder to enforce by law than by custom, social norms of hospitality may suggest ways to cultivate institutional cultures that mimic communities, since for those who live in them for years, that is what they become. 

Image: Kosher meals being prepared for inmates at a Washington state prison. (Photo Credit: Troy Wayrynen | The Columbian)