Just one day after bucking conventional wisdom by not reviewing any of the lower-court decisions striking down five states’ bans on same-sex marriage, the Justices took the bench again this morning to hear oral arguments. First up was Holt v. Hobbs, a Muslim inmate’s challenge to a prison policy that prohibits him from growing the beard that he believes his religion requires. Although high-profile cases like this one usually draw rapid-fire questioning from the bench, and can even run over the time allotted to them, today the Justices seemed unusually subdued, and the argument actually finished a little early. When it was over, inmate Gregory Holt appeared to have a solid majority of the Justices on his side – including Justice Samuel Alito, who is generally one of the most loyal allies of prosecutors and prison officials on the Court. Let’s talk about the argument in Plain English.

As I explained in my preview of the case, Holt believes that his Muslim faith requires him to grow a full beard. He was willing to compromise with a half-inch beard, but Arkansas prison officials were unwilling to go along with that middle ground. For safety and law-enforcement reasons, they only allow inmates to grow a quarter-inch beard, and then only if they have a diagnosed skin condition. Arguing on Holt’s behalf, University of Virginia law professor Douglas Laycock began by reminding the Justices that forty other prison systems would allow Holt to grow a beard. What Arkansas was really asking the Court to do, he said, was to give it “absolute deference to anything they say just because they say it.”

Laycock’s argument drew questions from both the conservative- and liberal-leaning Justices. Two main points seemed to preoccupy them. The first is what is often known as a “line-drawing problem.” The Justices aren’t just deciding this case; their opinion has to establish a rule that lower courts can apply to future cases with different facts. And so even if this case might be a fairly easy one, is a one-inch beard too long? What about a two-inch beard or a full beard? Justice Antonin Scalia, for example, warned Laycock that he didn’t want the Court to have to relitigate this question over and over again, “half-inch by half-inch.” And Justice Ruth Bader Ginsburg expressed concern about the broader implications of the Court’s decision, even beyond beards. She noted that, for example, male Sikhs are prohibited from cutting their hair and required to wear a turban. Could prisons prohibit that? (Laycock acknowledged that such a scenario might be a tougher call than this case.)

The second sticking point for the Justices was the question of deference: how much weight should courts give to determinations by prison officials regarding safety and security? And specifically, what role should deference play when an inmate is alleging a violation of the federal statute that is intended to protect his religious rights and doesn’t mention deference at all? Laycock’s response during his rebuttal was succinct: the more informed a decision, the more deference it deserves. Because there is no indication in this case that prison officials ever considered the religious needs of prisoners, no deference is warranted. Deference cannot, he emphasized, trump the statute itself. Arkansas Deputy Attorney General David Curran – defending the prison’s policy – had a slightly different answer for the Court, telling the Justices that courts should not defer to prison officials if their reasoning is inconsistent with “logic or common sense.” Curran also suggested that deference should be “a thumb on the scale” when a court is making its decision; “if deference means anything,” he argued, “it means that you don’t have to copy the prison policies of other states who don’t even have the same security concerns we do.”

As in the state’s brief, security concerns were at the heart of Curran’s argument. Unfortunately for him, the Justices were openly dismissive of two of those concerns. Addressing the argument that the beard ban was intended to prevent inmates from hiding contraband such as a SIM card or a weapon in their beards, Ginsburg asked why the state didn’t have a similar rule for hair, where it might be easier to conceal something. Justice Stephen Breyer (who was uncharacteristically quiet today, perhaps because he was feeling under the weather) tried to nail down whether the state had any actual examples of an inmate in a state where beards are permitted hiding anything in a beard. “There is no example,” Curran conceded. But even if it were a possibility, Alito queried, why couldn’t the state just give a bearded inmate a special comb and require him to comb it to prove that he isn’t hiding anything? Drawing laughter from spectators, Alito predicted that, if an inmate is trying to hide a SIM card or a “tiny revolver” or “anything else you think can be hidden in a half-inch beard,” it will fall out. When Curran countered with possible obstacles, Alito appeared incredulous, asking him, “You really think that will be difficult, to say here’s a comb, comb your beard?”

The Justices spent even less time on the possibility raised by the state’s brief that it needed to prohibit beards to prevent an escaped inmate from eluding capture by shaving off his beard and changing his appearance. Curran tried to fend off questions from Scalia by explaining that prison officials had not testified on this issue in the lower courts. That tactic might have worked in the lower courts, but not with Scalia, who instead seemed to regard the question as one of common sense. The solution, Scalia shot back, is to “just take a photograph of him before he grows his half-inch beard. . . . It seems to me it’s . . . obvious.”

Curran also advanced a third justification for the ban on beards: the need to be able to identify prisoners while they are in prison. Prisons in Arkansas, he emphasized repeatedly, are unique from other states that would allow Holt to have a beard. In particular, he explained, inmates go out in the fields to work during the day and then return to their assigned barracks. Prison officials need to be able to prevent a prisoner from shaving off his beard and switching prison IDs with another prisoner so that he can gain access to (and potentially cause trouble in) another barracks. Here too, though, he found a skeptical audience in Alito, who peppered him with factual questions and observed that, among other things, such a scenario would require the inmate “to find someone who also looks like him” and lives in the barracks to which the inmate wants to gain illicit access.

During his short rebuttal, Laycock seized on the Justices’ apparent doubts whether the state truly needs to ban beards for religious reasons based on its need to identify inmates inside the prison. He reminded them that, for example, inmates can also change their appearances by shaving their heads, mustaches, or beards allowed for medical reasons – which they have every right to do. And although it remains unclear precisely what an opinion in his client’s favor might look like, by the time Laycock sat down, a majority on the Court seemed to agree with him.

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

Recommended Citation: Amy Howe, Beard ban under fire: In Plain English, SCOTUSblog (Oct. 7, 2014, 5:34 PM), http://www.scotusblog.com/2014/10/beard-ban-under-fire-in-plain-english/