The Supreme Court decided Holt v. Hobbs on January 20, 2015. If you recall, Holt v. Hobbs centered on an Arkansas inmate who wished to grow his beard to a half-inch length because he considered it essential to practicing Islam. The prison banned facial hair, except beards of a quarter-inch length for inmates with skin conditions, because of security risks: that prisoners could hide contraband in beards and they could shave them off if they escaped to not be recognized. The Supreme Court ruled 9-0 in favor of the inmate, with a decision written by Justice Alito, a concurring decision written by Justice Ginsburg (joined by Justice Sotomayor, concurring), and a concurring decision written by Justice Sotomayor.
Ruling on the RLUIPA (Religious Land Use and Institutionalized Persons Act of 2000), which states that institutionalized persons have a right to exercise religion (which is very broadly defined) unless limiting that practice is the “least restrictive means” of achieving a “compelling government interest,” as well as the RFRA (Religious Freedom Restoration Act of 1993) the Court found that, while the prison’s goals of prohibiting contraband and facilitating identification are certainly good things, they do not require limiting inmates’ religious liberty. The Court took a stand for religious freedom, echoing the word’s of last year’s Hobby Lobby decision. In fact, the Hobby Lobby decision is similar to this one but the reason last year’s is monumentally more controversial is because it also used the infamous “corporations are people” logic of Citizens United a few years ago.
In the District Court, the prisoner already seemed to be winning. Lawyers for the prison system couldn’t give any examples of how a prisoner could hide contraband in a beard, or why they wouldn’t be able to still hide contraband in their hair or clothes. They also couldn’t explain why taking photographs of prisoners before their facial hair is grown, a practice replicated in many other prison systems, couldn’t address the identification issue. They also couldn’t explain why they wouldn’t be able to monitor prisoners’ beards to make sure they would not exceed a half inch while they already monitor beards of inmates with skin conditions to make sure they don’t exceed a quarter inch. Nevertheless, the magistrate judge hearing the case believed the petition should be dismissed because the prison provided Holt with other religious accommodations, like a prayer rug and Islamic material. The District Court followed.
The Supreme Court decision is simple. There are a few tests to warrant protection under the RLUIPA, and Holt meets them all. First, the RLUIPA claims that the exercise in question must be compelled by religion. It was, and this was not contested. Second, the government policy must burden the religious exercise. Since the prison policy banned facial hair, it burdened this religious exercise of growing facial hair. This, too, was not questioned.
The Supreme Court argued that the District Court made a few mistakes. First, they believed that by providing Holt with a prayer rug and Islamic texts they had accommodated him enough, but this is a faulty understanding of First Amendment rights. The RLUIPA requires protection, not accommodation. In other words, the “substantial burden” question is asking not if Holt has enough religious practice, but whether his religious practice was taken away. In this case, it was taken away because he could not grow his beard. Second, the District Court thought that there was no burden because Holt would be following his religion if he “tried” to follow it (e.g. grow a beard) but he was not successful (e.g. limited by the prison). However, the RLUIPA protects religious activity, “compelled” or otherwise. Third, the District Court argued that not all Muslims agree that one has to grow out one’s facial hair. The Supreme Court argued not only that Holt’s view on facial hair widely held, but also that a protected religious exercise doesn’t have to be unanimously agreed upon by members of the religion.
After Holt met his burden, the prison, too, was held to RLUIPA standards. The prison had to prove that its rules were (a) in furtherance of a compelling governmental interest and (b) the least restrictive means to further that interest. Again, their reasons for banning facial hair are to prevent contraband and to identify escaped prisoners who could shave off their beard. The Supreme Court agrees with these concerns (in other words, contraband and escaped prisoners are bad things) but not with the methods.
First, it is ridiculous to think, the Supreme Court argues, that one could realistically hide dangerous contraband in a half-inch beard. They could also hide the contraband in their (presumably longer) head hair or clothing. The prison officials claimed that a half-inch beard would provide a security concern. But while the RLUIPA allows deference to prison officials to seek out their expertise, it does not allow unquestioning deference. The Court concluded that a less restrictive means to achieve the prison’s goal would be to just comb through the hair to find contraband.
Second, the Court decided that the prison could take photographs of prisoners without facial hair at first to have a picture of what the prisoner looks like without facial hair, then allow them to grow out their hair. The prison contended that a dual-identification system would work for outside authorities but not for prison guards. The Court didn’t buy it.
The Court also argued that the prison didn’t adequately respond to a few other arguments. First, there are other inherent security risks in the prison, like that (a) some people are allowed to grow quarter-inch beards, (b) people wear clothes and shoes, and (c) people wear hair on their heads. And though the prison doesn’t force inmates to go bald, barefoot, and naked, they don’t allow prisoners to grow hair a quarter-inch longer than they allow for some inmates. Second, they failed to argue with other states could allow their inmates to grow out beards to a half-inch but Arkansas inmates were not allowed.
Justice Ginsburg’s two sentence-long concurring opinion clarifies a difference between this one and Hobby Lobby. In this case, unlike in Hobby Lobby (a case in which Ginsburg famously and hotly dissented), Holt’s religious exercise does not harm other individuals who do not share his belief (as opposed to Hobby Lobby, which has a religious belief that prevents contraception for its employees).
Justice Sotomayor’s concurring decision clarified the use of deference in this case. Although deferring to prison officials was legitimate, the officials cannot declare a “compelling governmental interest” by fiat – in other words, it cannot be based on speculation or an untested assumption; rather, it is the prison officials’ burden to prove that their “compelling governmental interest” is in fact a compelling governmental interest. Further, she clarifies that the prisons don’t have to respond to every option brought up by the Court for other “least restrictive means.” It’s a relative term and is very hard to define. The prisons do have to respond to the options brought up by the petitioner in the litigation process, something the Arkansas Department of Corrections failed to do.
So what’s the takeaway? This is the third time in recent years the Supreme Court has broadly ruled in favor of religious freedom. And while RFRA only applies to federal institutions, RLUIPA applies to the states, so both levels of government will likely be taking religious freedom very seriously.