By Nick Little
Legal Director, Center for Inquiry
Holt v. Hobbs is an odd case to come before the Supreme Court. It is a situation where each side has firmly dug its heels into the ground, and the kind of case that leaves non-lawyers shaking their heads about wasting taxpayer money. An Arkansas state prisoner, Adbul Maalik Muhammad (previously known as Gregory Holt) claims his religion requires him to eschew shaving, but is willing to compromise on a half-inch beard. The state of Arkansas, on the other hand, claims the prison system cannot function if prisoners are allowed to grow beards for religious reasons, but is willing to permit prisoners with skin conditions to grow quarter-inch beards. And so, on October 7th, this case made it all the way to the Supreme Court.
Such a case presents quite the dilemma for the Court. On the one hand, the Roberts Court has not been a friendly one to prisoner claims, with the conservative majority, for example, finding no need for reasonable suspicion to allow strip searches of prisoners. On the other, this court has been extremely solicitous of religious freedom cases. It ruled that a church school could designate its teachers as ministers, thus exempting them from employment discrimination laws, and the conservative majority famously ruled that corporations could claim religious exemptions to the requirement to provide health insurance for contraception. This case places those two trends in conflict.
At its core, this case is about way more than beards on prisoners. The central issue dominating oral arguments is the deference due to correctional staff regarding the necessary government interest. Muhammad sued under the Religious Land Use & Institutionalized Persons Act (RLUIPA). This law, along with the Religious Freedom Restoration Act (RFRA), sets a very high threshold for the government to meet in order to justify a “substantial burden” to a person’s exercise of religion. The government must show a compelling interest, and must advance it in the least restrictive manner possible. Judged by this standard, Arkansas’ case appears flimsy. It seems hard to justify how significant contraband can be concealed in a half-inch beard but not in a quarter-inch one. Or how a prisoner shaving off a half-inch beard can significantly change his appearance, thus posing a threat to prison security.
But Arkansas claims that courts must simply accept the word of the prison system as to what threatens security, the maintenance of which is clearly a compelling interest. Accepting this argument seems to dramatically undercut the intended protections of RLUIPA. If prison officials are to be believed, with no other evidence, that half-inch beards are a major threat to safety, and thus must be banned without exception, despite 40 other prison systems allowing them, what claim can succeed? The Court focused on this issue in questioning Arkansas’ attorney, with justices across the bench seemingly unconvinced that actual risks would follow allowing such a beard. Justice Breyer and Chief Justice Roberts noted that Arkansas had failed to show any actual harm anywhere in the country from such an exemption. Justice Alito questioned whether Arkansas’ policy was indeed the least restrictive means available, asking why the simple expedient of requiring an inmate to comb his beard would not suffice.
In questioning the Muhammad’s attorney, on the other hand, the Court showed concern that this case would not end litigation on this issue because prisoners will claim the right to grow longer beards. While Mohammad’s counsel noted that his client should not be penalized for being reasonable and offering to compromise on a half-inch beard, Justice Scalia suggested that the Court never should have taken the case, but instead should have waited for a case with a request to grow a full beard. The Court’s worry that it would be unable to craft an overall rule did not, however, appear to translate to an acceptance of Arkansas’ claim, described by Muhammad’s attorney as “absolute deference to anything they say just because they say it.”
As far as the tea leaves of oral argument can be read, the Court appeared overall sympathetic to the plaintiff and his request for a religious accommodation. The liberal wing, comprised of Justices Ginsburg, Sotomayor, Kagan and Breyer, was unconvinced that Arkansas had made the necessary showing of harm to override Muhammad’s religious convictions. These concerns were also shared by the more conservative justices, including Justice Alito, who challenged why the prison system could not accommodate this request by simple adjustments. Justice Scalia could not resist making clear he didn’t think RLUIPA was a good law (unsurprisingly, as it and RFRA were enacted by Congress to directly reverse his decision in Employment Division v. Smith). He noted that the text of the statute required a compelling government interest, so there would be no question of a reasonableness test to balance the interests of the prisoner and the prison system. What is certain, however, is that even if this prisoner is granted his exemption, this is not the last RLUIPA claim that will make it to the Court, and quite possibly not even the last beard case.