What does Gregory Holt, an Arkansas inmate serving a life sentence for breaking into his ex-girlfriend’s house and slitting her throat, have in common with the retail behemoth Hobby Lobby, a corporation owned by a family with strong religious beliefs? More than you might think. For starters, they have the some of the same lawyers, from the Becket Fund for Religious Liberty – which describes itself as a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.” Like Hobby Lobby, Holt is in the Supreme Court arguing that conduct by the government – in his case, a prison policy prohibiting him from growing a beard – violates a federal statute intended to protect religious rights. Last summer, a majority on the Court agreed with Hobby Lobby that it cannot be required to comply with a federal mandate to provide its female employees with health insurance that includes access to birth control, when doing so would violate the company’s religious beliefs. When the Court hears oral arguments in his case next Tuesday, Holt hopes to get a similar result at the Supreme Court, where he will have one thing that Hobby Lobby didn’t have: the federal government on his side. Let’s talk about it in Plain English.

First, a bit of background. The Religious Land Use and Institutionalized Persons Act (commonly known as RLUIPA) provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” even if the burden results from a rule that normally applies to everyone, unless the government can show that the burden advances “a compelling governmental interest” and is the least intrusive way of doing so. For purposes of the law, “institution” includes state prisons that receive federal financial assistance, which Arkansas prisons do.

This is a challenge to an Arkansas prison policy that prohibits prisoners from having beards that are more than a quarter-inch long, and then only if a doctor has diagnosed them with a skin problem. Holt, a devout Muslim, asked prison officials for permission to grow a half-inch beard – a compromise from the full beard that he believes his religion requires. When permission was denied, he filed a lawsuit in federal district court. Prison officials cited safety and law enforcement concerns – the possibility that inmates could hide razor blades, drugs, or SIM cards in their beards, as well as the prospect that an escaped inmate could easily change his appearance by shaving off his beard – to justify the ban. Both the trial court and the U.S. Court of Appeals for the Eighth Circuit – which hears appeals from federal district courts in Arkansas – ruled in favor of the prison, but last winter the Supreme Court agreed to weigh in.

Holt presents his case as a straightforward one which checks all of the boxes of the RLUIPA test. First, he says, the no-beard policy imposes a substantial burden on him, because it keeps him from following an important tenet of his faith and punishes him if he violates it. By contrast, he argues, the prison lacks a “compelling interest” in prohibiting beards and is not using the “least restrictive means” to advance its alleged safety and law enforcement interests. Here, he emphasizes that nearly all states (forty-four) and the federal government would allow him to have a half-inch beard. Not only has Arkansas failed to explain why the same rule wouldn’t work there, but state officials actually admitted that they hadn’t tried to learn anything about those prison systems. And, he adds, although the state has not provided any examples of anyone actually hiding contraband in a half-inch beard, if that were a genuine problem then prison officials can just search the beards. Finally, Holt dismisses as a straw man the argument that prisons need to prohibit beards in case a bearded inmate escapes: the prison already requires a new photo whenever an inmate changes his appearance.

Perhaps the toughest hurdle for Holt to overcome is an issue that was not before the Court in the Hobby Lobby case: when deciding whether the prison’s no-beard policy violates RLUIPA, how much weight (also known as “deference”) should courts give to the prison officials’ assertion that they need to prohibit beards to keep prisons safe? After all, prison officials – not courts – are the ones with real experience running prisons. Holt emphasizes that, although the legislative history of RLUIPA mentions deference, that history can’t trump the text of the law, which does not. But even if deference may sometimes be appropriate, he continues, the idea is that courts should defer to prison officials when they have experience and expertise. And no such expertise exists here, given that “prison officials could not support their opinions with any examples, and . . . knew nothing about experience in many other prisons.”

The federal government filed a friend-of-the-court (“amicus”) brief on Holt’s side – and opposing the state. Although the federal government runs its own massive prison system, it too is dubious of the state’s arguments that it needs to ban beards to keep prisons safe. It isn’t enough, in the federal government’s view, for prison officials to just cite safety concerns, without more: wanting to keep prisons safe may be a “compelling interest” for purposes of the RLUIPA test, but not all policies that limit an inmate’s ability to practice his religion necessarily promote such an interest. And although the federal government agrees that judgments by prison officials should receive some deference, it insists that such judgments must be thoughtful ones; conclusions that are based on “exaggerated fears or mere speculation” are not entitled to deference.

Arkansas sets the theme for its argument from the very first paragraph of its brief: prisons are dangerous places, in which inmates can (as another inmate did in 2012) stab a prison guard to death with a homemade knife. So although it “takes religious freedom very seriously,” it explains, “it takes seriously its paramount interests in safety and security too.” When Congress passed RLUIPA, the state says, it fully expected that courts would continue to defer to prison officials on important issues like security. And it should do so even if they can’t point to actual examples of the problem that they are trying to prevent: prison officials shouldn’t have to sit around and wait for an incident to happen before taking steps to head off those kinds of incidents. Moreover, it shouldn’t matter that the state does allow prisoners with skin problems to have a quarter-inch beard. Such beards are rare and (because they are shorter) more easily monitored for contraband. Nor should it matter, according to the state, that Holt might be able to grow a beard in some other prison. We don’t know why other states do what they do – perhaps, the state suggests, they are just less risk averse than Arkansas?

This would be an interesting case anytime, but its profile has undoubtedly been raised because it comes on the heels of the Court’s decision in Hobby Lobby. Having ruled that a corporation can rely on the devoutly Christian beliefs of its owners to avoid complying with the Affordable Care Act’s birth-control mandate, will at least five Justices be equally receptive to an inmate’s desire to comply with his Muslim religion by growing a half-inch beard? Throw in yesterday’s announcement that the Justices will review the case of a Muslim teenager who alleges that she was not hired for a job at a popular clothing chain because she wears a headscarf, and it looks like it could be another significant Term for religious freedom at the Court. Stay tuned.

Posted in Holt v. Hobbs, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, Court to consider prison beard ban: In Plain English, SCOTUSblog (Oct. 3, 2014, 12:02 PM), http://www.scotusblog.com/2014/10/218456/