Defendant Matchett has permitted Marsh to use the chapel on several occasions, and allowed him to burn a candle in the chapel. Defendant Matchett also has offered to allow Marsh to use Roman Catholic incense in Marsh's Wicca religious ceremonies. Native Americans are permitted to burn sweet grass and sage in connection with their religious observances. Marsh filed a grievance with prison officials, seeking delivery of his incense, which he had ordered through a vendor approved by the Michigan Department of Corrections. At first the grievance was denied on the grounds that the incense was a threat to institutional security because it posed a fire hazard and could mask the odors of marijuana and spud juice.
Prisoners retain their First Amendment right to freely practice their religion.
However, prisoners' constitutional rights may be subjected to reasonable restrictions and limitations. A prison regulation which infringes on a prisoner's constitutional rights is valid if it is reasonably related to legitimate penalogical interests. In Turner, the Supreme Court enumerated four factors to be evaluated in determining the reasonableness of such a prison regulation. The parties in the pretrial order have indeed stipulated that it is unreasonable for the plaintiff to be banned from using incense. However, there remains the question whether the Free Exercise Clause is applicable to Marsh's case, because the defendants have heretofore said that Marsh does not need the incense to practice Wicca.