The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5623 December 17, 1979 PRISONS AND PRISONERS: Religious worship in prison CONSTITUTIONAL LAW: Free exercise of religion A minister of the gospel may bring a small amount of wine into a prison for the sole consumption of the minister in the conduct of religious liturgical services for prisoners. Michael J. Griffin State Representative The Capitol Lansing, Michigan Dominic J. Jacobetti State Representative The Capitol Lansing, Michigan You have requested my opinion on the following question: Does the carrying of one ounce of wine into a state correctional facility by a minister of the gospel for the sole consumption by the minister in conducting a religious liturgical service violate the provisions of 1909 PA 17, Secs. 1 and 2, as amended by 1977 PA 164? 1909 PA 17, Secs. 1 and 2; MCLA 800.281-282; MSA 28.1621-1622, state: 'Sec. 1. No spirituous or fermented liquor, drug, medicine, poison, opium, morphine or any other kind or character of narcotics shall, on any pretense whatever, be sold or given away in any prison, or in any building appurtenant thereto, or on the land granted to or owned or leased by the state for the use and benefit of the prisoners; nor shall any kind of spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or any other kind or character of narcotics be brought into any prison, or any building appurtenant thereto, on or to the land granted to or owned or leased by the state for the use and benefit of the prisoners, without a written permit, signed by the physician of such prison, specifying the quantity and quality of the liquor or narcotic which may be furnished to any convict, or employe in the prison, the name of the prisoner or employe for whom, and the time when the same may be furnished, except the ordinary hospital supply of the prisons, which permit shall be delivered to and kept by the warden of the prison; nor shall any spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or any other kind of character of narcotics be sold, given away or furnished, either directly or indirectly, to any convict either in, or anywhere outside of the prison or be disposed of in such manner or in such a place, that it may be secured by any prisoner or employe of the prison; nor shall any spirituous or fermented liquor, drug, medicine, poison, opium, morphine, or any other kind or character of narcotics be knowingly sold, given away, or furnished to any paroled prisoner, without a written prescription of a duly licensed physician. 'Sec. 2. A permit or prescription shall not be granted or given unless the physician granting or giving the permit or prescription determines that the liquor or narcotic allowed to be furnished is necessary for the health of the person named in the permit or prescription, for whose use it is permitted, which shall be stated in the permit or prescription.' (Emphasis added.) The underscored language evidences the Legislature's intention in enacting 1909 PA 117, supra, to preclude liquor and other intoxicants from falling into the hands of prisoners, whether by sale, intentional furnishing of the same, or by the unintentional and careless disposal thereof. (1) The statute is silent as to the possession or use of liquor by someone other than a prisoner or prison employee for a lawful purpose other than for medicinal use. Specifically, the statute is silent as to the use of a fermented liquor (wine) by ministers or chaplains as part of a religious ceremony or liturgical service. This statutory silence is significant in light of other relevant constitutional and statutory provisions. Const 1963, art 1, Sec. 4 provides, in pertinent part: 'Every person shall be at liberty to worship God according to the dictates of his own conscience. . . . The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.' (2) Const 1963, art 4, Sec. 47, continuously part of the State Constitution since 1850 (3), authorizes the employment of chaplains in the state prison system: 'The legislature may authorize the employment of chaplains in state institutions of detention or confinement.' Pursuant to this constitutional authorization, the Legislature enacted 1859 PA 185; MCLA 800.291 et seq; MSA 28.1631 et seq, which provides: 'Sec. 1. That it shall be the duty of the keeper, or other persons having the control of any prison, jail, almshouse, house of correction, hospital, or poor-house in the state of Michigan to fix and appoint some suitable and convenient time, in each week, during which clergymen of all religious denominations may visit the inmates of such prison, jail, almshouse, house of correction, hospital or poor-house; and when any inmate of any jail, prison, almshouse, house of correction, hospital or poor-house is dangerously sick and desires religious counsel, the clergyman of his choice shall be admitted to visit such inmate, and be permitted to administer to such inmate the rites of his church. 'Sec. 2. It shall be the duty of such keeper or other person in control, during the time fixed, in pursuance of the first section of this act, to give free access to any clergyman of any religious denomination, and to furnish such clergyman all reasonable facilities for interviews with the inmates named in the first section: Provided however, That the keeper or other persons having the control of said prison or jail, almshouse, workhouse, house of correction, hospital or poor-house shall first be satisfied that such clergymen are in good and regular standing in their profession, and are pastors of any church or religious congregation in this state.' This enactment places an affirmative duty upon prison and jail officials to arrange for weekly visitations for clergymen of all religious denominations. It also requires religious counsel and ministration of church rites to any dangerously sick inmate upon request. Statutes in pari materia, i.e., those relating to the same subject or having the same general purpose, are to be construed together. Rathbun v State of Michigan, 284 Mich 521; 280 NW 35 (1938). If possible, they must be construed together so that each is given effect. A strict or liberal construction of one act should not be followed where it would defeat the main purpose of another enactment relative to the same subject. City of Detroit v Michigan Bell Telephone Co, 374 Mich 543; 132 NW2d 660 (1965). 1859 PA 185, supra, (clergyman visitation), relate to prison conduct, regulation and procedure. Thus, these two statutes must be construed together to effectuate the intent of each act, as well as their underlying constitutional provisions. 1909 PA 27, supra, cannot be literally construed to defeat the purpose of 1859 PA 185, supra, in providing meaningful access to ministers and religious rites in state prisons. Moreover, 1909 PA 17, supra, may not be construed to unreasonably limit prisoners' constitutional rights to exercise their religious beliefs. 'Prisoners retain substantial religious freedoms under the First and Fourteenth Amendments to the United States Constitution, and all persons who are incarcerated must be afforded reasonable opportunity to exercise their religious beliefs. Cruz v Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). ' '. . . the right to attend religious services may be denied only to those inmates for whom such would create an unreasonable security risk.' O'Bryan v County of Saginaw, Michigan, 437 F Supp 582, 600 (ED Mich 1977). It should also be noted that Cruz v Beto, supra, holds that, depending upon the extent of demand, a special chapel or place of worship must be provided so as to afford prisoners reasonable opportunity to exercise the religious freedom guaranteed by the First and Fourteenth Amendments. Religious freedoms of the prisoners may be denied or limited only to the extent that prison security necessarily requires. O'Bryan v County of Saginaw, Michigan, supra. In the absence of a strong showing by the state of a substantial and controlling interest which requires the subordination or limitation of these religious freedoms, entirely lacking here, and which justifies their infringement, governmental restrictions in this area must be viewed as arbitrary and unconstitutional. Walker v Blackwell, 411 F2d 23 (CA 5, 1969). No substantial state interest in prison security or discipline appears to be served by prohibiting a small volume of wine upon prison grounds for religious liturgical purposes. Therefore, it is my opinion that 1909 PA 17, supra, does not prohibit a minister of the gospel from bringing a small amount of wine into a prison for his or her sole consumption in the conduct of a religious liturgical service. Frank J. Kelley Attorney General (1)
(2)
See also, US Const, Am I which is applicable to the states through US Const, Am XIV, Torcaso v Watkins, 367 US 488; 81 S Ct 1680; 6 L Ed 2d 982 (1961), and which prohibits government from making a law 'prohibiting the free exercise [of religion].'(3)
See Const 1850, art 4, Sec. 24 and Const 1908, art 5, Sec. 26.