The Connecticut Department of Correction and the People for the Ethical Treatment of Animals have apparently reached agreement: Fish are not "swimming vegetables."

The Correction Department has confirmed that it will offer vegetarian substitutes for fish in the meals it provides to prison inmate Howard Cosby, after the PETA Foundation threatened litigation claiming infringement of Cosby's religious beliefs. Matthew Strugar, a PETA Foundation attorney, said that Cosby is a Buddhist who "practices a lifestyle of nonviolence that involves refraining from eating animal flesh, including fish." In a letter earlier this month, PETA claimed that prison staff had repeatedly refused to stop serving Cosby meals containing fish.

"If it's true, the prison decided to do the right thing and respect Mr. Cosby's commitment to non-violence and his commitment to not participate in violence against fish," Strugar, senior counsel for the PETA Foundation, said late last week. Strugar added that he has yet to confirm the change with Cosby and looks forward to doing so in the near future.

Correction Department spokesman Andrius Banevicius said that Cosby told prison staff he was "grateful and appreciative" for the department's decision. The Law Tribune was unable to confirm this reaction with Cosby prior to its deadline late last week.

"This was handled on an individual-case basis," Banevicius said. "Generally speaking, the DOC has agreed to provide [Cosby] a nutritional substitute whenever fish would have been on his menu cycle." Typically, that alternative would be a peanut butter and jelly sandwich, he said.

Cosby was sentenced in 2004 to 19½ years in prison for sexual assault and other crimes. He said that he had previously been served fish three times per week at the state's Corrigan-Radgowski Correctional Institution in Uncasville.

Connecticut's prisons do offer special "common fare" meals to observant Jewish and Muslim inmates comprised of foods "acceptable" to their faiths, Banecivius said. Banecivius said he was not immediately aware of requests similar to Cosby's from other Buddhists, although the state's prisons do regularly make menu accommodations for medical reasons.

Had the Correction Department not decided to offer Cosby vegetarian meals, it risked being ordered to do so by a court. A federal law known as the Religious Land Use and Institutionalized Persons Act forbids the government from imposing "a substantial burden on the religious exercise of inmates in certain institutions unless the government shows that the burden furthers a compelling governmental interest by the least restrictive means."

This standard, passed by Congress in 2000, is much stricter than the test applied by courts under the Free Exercise Clause to the First Amendment of the Constitution. The Free Exercise test asks only whether facially neutral prison regulations are reasonably related to legitimate penological interests.

In 2009, the U.S. Court of Appeals for the Second Circuit held that RLUIPA's higher standard applied to a New York prison's refusal to provide an inmate vegetarian meals on the basis of his religious beliefs, although, on remand, the district court later found that the inmate was not entitled to such meals even under RLUIPA.

A federal district court in Massachusetts ruled differently in 2008, however, ordering a prison in that state to provide a Buddhist inmate with vegan meals and requiring the state to pay the legal fees incurred by the inmate in bringing the challenge.

Explaining its interest in Cosby's claim, another PETA attorney said that fish are "not swimming vegetables." "They have thoughts," said Jeff Kerr, general counsel to the PETA Foundation. "They have interests. They have a central nervous system." •

The Associated Press contributed to this report. Law Tribune contributor Patrick R. Linsey is an associate at Wofsey, Rosen, Kweskin & Kuriansky LLP.