Half-Inch by Half-Inch: Holt v. Hobbs

Last week, the Supreme Court heard arguments for the case Holt v. HobbsThe case focuses on Gregory Holt, who also goes by Abdul Maalik Muhammad. Holt, a practicing Salafi Muslim, was a prisoner in an Arkansas state prison. To fulfill his religious beliefs, Holt tried to obtain a relief from the prison’s rules against facial hair: trimmed mustaches and quarter-inch long beards for dermatological problems. Holt claims growing a beard is necessary part of his religious tradition and the prison’s rule significantly (or rather totally) impaired his ability to grow a beard. His argument is that the prison’s facial hair rules violate the Religious Land Use and Institutionalized Persons Act.

Key Laws, Cases, etc. to Understand

  • Amendment 1 – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
    • In other words, individuals have a right to practice religion freely without government interference
  • Price v. Johnston – a court case decided more than 60 years ago, the Supreme Court came to the conclusion that “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights” according to this The Atlantic article
    • This case was overturned by the RLUIPA, see below
  • Religious Land Use and Institutionalized Persons Act (RLUIPA) – Passed in 2000, this law prevents prisons receiving federal funds (which this Arkansas prison does) from placing burdens on their prisoners to practice their religion freely without limitation by a prison. There are two standards by which the government can restrict religious liberty:
    • If the burden furthers “a compelling government interest” (e.g. if there is a legitimate security concern that would be underlined by the religious practice)
    • If the burden is the “least restrictive means” of furthering the government interest (e.g. if it is the least restricting on prisoners’ religious rights)
    • Note about the RLUIPA: Holt is suing under this federal law, not under the 1st Amendment. The 1st Amendment is still relevant, however, because it is the basis for the RLUIPA.
  • Cutter v. Wilkinson – This 2004 case centered on an Ohio prison that evidently prevented prisoners from practicing “non-mainstream religions” on the grounds that RLUIPA was a violation of the Establishment Clause of the Constitution, that is, the RLUIPA meant that the government passed a law that respected an establishment of religion. In a 9-0 decision, the Supreme Court ruled with the prisoners, stating that the policy wasn’t favoring religion as long as religious liberty concerns and security concerns were balanced (e.g. if the religious prisoners received special treatment)
  • Fraternal Order of Police v. City of Newark – This 1999 case was argued in front of the Third Circuit Court of Appeals (interestingly, with Justice Alito writing the decision). The police department of Newark mandated that its police officers shave all facial hair, except for medical reasons, like in Holt v. Hobbs. Two Muslim police officers claimed this rule put a burden on their religious liberty because growing a beard was central to their religion. The Court ruled in the police officers’ favor.

Hobbs’s Arguments

The prison’s main concerns are twofold:

First, that a prisoner could hide weapons or drugs in his beard, a clear danger to prison guards.

Second, that an escaped prisoner could shave his beard to change his appearance and avoid being caught.

In oral arguments, David A. Curran, a deputy Arkansas attorney general representing the state, outlined a third reason for banning beards. Tenuous as it may be, Curran says that an Arkansas-specific reason that wouldn’t apply to other state or federal prisons is that, since prisoners live in 60-person barracks, a prisoner with a changed appearance “could get into the barracks where he is not supposed to be and an assault could occur…And that is very serious in our environment.” Curran also noted that the prison in question was a maximum-security prisons and most of the prisons Holt referred to were minimum-security prisons which, self-evidently, don’t require the same level of security.

Arkansas contends that RLUIPA would let the Courts defer to prisons to determine what is a legitimate risk, and it doesn’t matter whether or not the prison can point to specific examples. Preventative measures help to stem a problem before it becomes a severity. The State of Alabama has filed an amicus brief that supports this argument, calling for deference to state prisons on this matter.

Arkansas also argues that the the quarter-inch beards it lets prisoners with skin conditions grow are not a concern because nothing can be hidden in a quarter-inch beard. Arkansas argues further that other states’ policies shouldn’t affect Arkansas’s law because those states may not be as risk averse as Arkansas.

Holt’s Arguments

Holt defends his beard with a litany of reasons:

First, the prison’s ban on beards substantially burdens his ability to practice his religion since, he contends, growing such facial hair is a critical component of his religious faith.

Second, the rule does not meet the RLUIPA’s standards of a “compelling government interest” or using the “least restrictive means” since in nearly every other state (44 other states) and federal prison Holt’s half-inch beard would not be violating any rule. Holt contends that Arkansas hasn’t explained why its situation is different than another state that would warrant a difference in policy.

Holt adds that while nothing dangerous could be hidden in a half-inch beard, the prison could always soothe its concerns by combing through the prisoners’ beards.

Holt adds that the argument that an escaped prisoner could shave his beard is nonsense because the prison already requires a new photograph every time a prisoner’s appearance is changed.

Regarding the deference question (should the Court defer to the prison’s judgment of whether the beard rule is necessary for security), Holt argues that deferring to the prison wouldn’t make sense since the prison has not supported their argument with examples, thus they don’t have expertise on the topic.

The federal government issued an amicus brief on Holt’s side, contending that there isn’t a compelling interest held by the prison that would justify limiting Holt’s religious practices.

Items to Consider/Other Thoughts

This case is strikingly similar to last year’s Burwell v. Hobby Lobby case for a number of reasons. A religious liberty case, it focuses on a religious entity that tries to become exempt from a government mandate. In Hobby Lobby, the Court argued that Obama had not adopted the least restrictive means to protect Hobby Lobby’s religious freedom since the Affordable Care Act had created an exception for nonprofit religious associations who did not have to pay contraceptive coverage to their employees. Similarly, the dermatological exception for prisoners in Arkansas creates a similar argument, that exceptions exist for others. Additionally, both cases were argued by the Becket Fund for Religious Liberty, which is making similar arguments this year as it did last.

There is an interesting discussion brewing about deference. Traditionally, if it decides to defer to a relevant authority, particularly an authority in question, the Supreme Court will defer questions about the ends of the matter rather than the means, that is, it will defer questions about the reasons for a policy rather than the merits of the policy. Here’s what this means in context: the Court can defer to the prison on questions about the likelihood and/or severity of an attack by a prisoner using a weapon hidden in his beard, but they will not defer questions about the merits of the policy in question. The use of deference in RLUIPA cases has traditionally been used to stifle the defendant: judges usually have little sympathy for prisoners who, with a ton of time on their hands, convert religions and try to create exceptions in prison rules for themselves. Judges will defer to the prison system, which will always support its actions, and the judges will rule in favor of the prison arguing what the prison just told them. However, based on the justices’ questions toward Arkansas and the court’s recent ruling on Hobby Lobby, it’s still very likely the Court will rule in favor of the defendant, which I will discuss below.

Interestingly, this case involves a minority religion, unlike most cases which involve Christianity. While this shouldn’t impact the Court’s decision, it’s not certain whether it won’t change judges’ minds. The landmark religious freedom cases that the Supreme Court has decided recently all involve Christian matters, a significant fact because two-thirds of the justices are Catholic. This case will exemplify whether the Court will go beyond securing the rights of Christians. Quite annoyingly, Justice Scalia, in a 1990 decision that limited liberty for members of a fringe religion, wrote that creating religious exemptions to laws for every religion would be “courting anarchy.” This comment certainly comes from a position of privilege and should discredit the justice saying it, but that won’t stop Scalia from making such an errant decision. Hopefully he comes to his senses and realizes the foolishness of his statements.

This case focuses on the idea of strict scrutiny. When reviewing the constitutionality of a law, the court can either follow a standard of “rational basis review” or “strict scrutiny.”

  • Rational Basis Review
    • The Court presumes the constitutionality of the law
    • The party that is trying to challenge the legislation must show that:
      • The law does not serve a legitimate purpose, or
      • The means of the law’s enforcement are not intimately tied to the goal(s) of the law
  • Strict Scrutiny
    • Typically for challenges to fundamental rights
    • The Court presumes the unconstitutionality of the law
    • The burden is on the government to show that:
      • The law does serve a legitimate purpose, and
      • The means of the law’s enforcement are intimately tied to the goal(s) of the law
    • This standard is far harder to clear

After a mess of a federal debate over ten years or so, Congress passed the RLUIPA to mandate strict scrutiny standards when dealing with religious freedom cases among prisoners.

The case might be thrown out. Holt was willing to compromise his religious beliefs to only wear a half-inch beard rather than the full beard his religion actually professes. Roberts, Scalia, and Kagan criticized this approach by saying Holt had made it “too easy” and it was idiotic to rule half-inch by half-inch since each ruling would be incredibly narrow and only affect a select few individuals. The Court would rather rule in a broader sense and settle a case once and for all. Then again, the justices were responsible for choosing the cases to be heard and were fully cognizant the half-inch issue was present before selecting the case.

Holt is no sweetheart. He has described himself as a Yemeni-trained terrorist, has threatened President Bush’s daughters, and has waged jihad on practically everyone who has crossed him in prison. Oh, and by the way, he was sent to prison on a life sentence for breaking into his ex-girlfriend’s home and stabbing her repeatedly.

Who Should Win?

I believe the defense should/will win easily. Arkansas’s general ignorance of the realities of this topic lead to a muddled debate that will infuriate the justices.

Curran seems unable to give an example of a prisoner, especially Holt, hiding something in his beard. Curran seems unable to place beards in the same category as long hair or turbans. And these slips are what costs you in front of the Supreme Court.

The most compelling specific argument in this case is that there is no room for contraband in a half-inch beard, especially when (a) prison officials would be allowed to comb the beard at any time (even Curran said in oral arguments “You know, I suppose that’s a possible alternative.”) and (b) there are other parts of the body, including hair on top of the head, that would better hide contraband. The frivolity of the state’s claim was pointed out by Justice Alito in oral arguments.

The fact that other prisoners can grow beards (because of medical conditions) show that preventing beards is not the upmost security concern. It it was such a concern, the prison wouldn’t take the risk with anybody and would not allow beards period.

Precedence, especially Cutter and Police, both mentioned above, not only provides evidence for the constitutionality of ruling for the defense, it also demonstrates the justices’ opinions.

Ed Lee, writing at the IIT Chicago-Kent School of Law’s SCOTUSNow Blog, has created a formula to predict the winner of cases by counting the amount of questions asked of each advocate. According to Lee, the advocate who is asked less questions wins more often than not (this makes sense: justices tend to point out flaws in their questions; if justices are pointing out more flaws in an advocate’s argument, that side is more likely to lose). As Lee points out, the prison was asked twice as many questions as Holt.

Get on Your Reading Game

The following articles explain the case and the legal issues at hand in a much more coherent manner than mine:

“Court to consider prison beard ban: In Plain English” – Amy Howe, Former Law Professor at American University’s Washington College of Law and Vanderbilt Law School – SCOTUSBlog – http://www.scotusblog.com/2014/10/218456/

“How Serious Is the Supreme Court About Religious Freedom” – Dawinder S. Sidhu, Law Professor at the University of New Mexico – Written in The Atlantic – http://www.theatlantic.com/politics/archive/2014/09/how-serious-is-the-supreme-court-serious-about-religious-freedom/380617/?single_page=true

“Inmate’s right to wear a beard is among cases coming up this SCOTUS term” – Mark Walsh – ABA Journal -http://www.abajournal.com/magazine/article/a_facial_challenge_inmates_right_to_wear_a_beard_is_among_cases_coming_up

“Two little known statutes may make religious belief superior to the law of the land” – Jeffrey Shulman, Professor of Constitutional Family Law at Georgetown Law School – Constitution Daily – http://blog.constitutioncenter.org/2014/10/two-little-known-statutes-may-make-religious-belief-superior-to-the-law-of-the-land/

“Should Short Beards Be Allowed Behind Bars?” – Nina Totenberg, Legal Affairs Correspondent, NPR – National Public Radio – http://www.npr.org/2014/10/06/351180675/should-short-beards-be-allowed-behind-bars

“Justices Say Case of Inmate’s Beard May Not Be the Best Test of Religious Liberty” – Adam Liptak, NYT – New York Times – http://www.nytimes.com/2014/10/08/us/politics/as-test-of-religious-liberty-justices-say-beard-case-may-come-up-short.html?partner=rss&emc=rss

“A Unanimous Church-State Decision from the Supreme Court?” – Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State – American Constitution Society for Law and Policy – http://www.acslaw.org/acsblog/a-unanimous-church-state-decision-from-the-supreme-court

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