Beards, prisons and religious freedom

The US Supreme Court yesterday issued an interesting religious freedom decision in Holt, AKA Muhammad v Hobbs, Director, Arkansas Dept of Correction (No 13-6827, Jan 20, 2015). (Thanks to Marc DeGirolami at the CLR Forum for the notice.) A Muslim prisoner wanted to grow a 1/2 inch beard for religious reasons. The State prisons policy required that prisoners have no beards, except that those with certain skin problems were allowed to grow a 1/4 inch beard. Holt, the prisoner, successfully sued the State under the provisions of the Federal Religious Land Use and Institutionalised Persons Act 2000 (“RLUIPA”), 42 USC  §2000cc et seq. The SC held that he had shown that the State rule burdened his religious freedom, and that the rule could not be proven by the State to be in furtherance of a “compelling governmental interest” or to be the “least restrictive means” of furthering that interest.

The unanimous decision of the Court (there were clarifications issued by Ginsburg J and Sottomayor J but they agreed with the outcome) is a nice illustration of how many religious freedom claims are dealt with in the US these days. Alito J provides a helpful “road-map” to the way the issues are raised, at part IA of the judgment (pp 2-4 of the linked decision). This case did not directly involve the right to free exercise of religion under the First Amendment to the US Constitution, because the prevailing view in the SC at the moment seems to be that Employment Division v Smith, 494 US 872 (1990) represents the correct approach to the First Amendment. In effect Smith is read to mean that so long as there is some plausible, non-“religiously hostile”, reason for a Government law then it cannot be challenged under the First Amendment. Following Smith, the US Congress attempted to return protection for religious freedom to a broader basis by enacting two Federal statutes. The first was the Religious Freedom Restoration Act 1993 (“RFRA”), which (it was subsequently held in City of Boerne v Flores, 521 US 507 (1997)) applies only to Federal law. The second was RLUIPA, which applies to specific types of State laws covered by Federal legislative power (according to Alito J here at p 3, the “Spending and Commerce Clauses”.) The particular State laws covered by RLUIPA, as its somewhat odd title conveys, are land use laws and laws governing “institutionalised persons” including prisoners in State jails.

Where RLUIPA applies, as with RFRA in its area, the substantive provisions require that a State law which “substantially burdens” the religious freedom of a prisoner, will only be valid if the State can show that:

imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a).

Here the Supreme Court held that

  • the plaintiff was able to show that he had a sincere and genuine religious belief, not motivated by some other reason (evidence at trial established “hadith requiring beards… are widely followed by observant Muslims” – see p 8), and the Court held that it was irrelevant that growing a beard was neither universally followed by all Muslim men, and also that it was not viewed as a “compulsory” part of Islam. Nor was it relevant that the prisoner was allowed to carry out other religious exercises- the specific issue of the beard mattered to him on genuine religious grounds.
  • hence it was a “burden” to be asked to shave off his beard below 1/2 inch (it may have been relevant that Mr Holt had already “compromised” in agreeing to restrict his beard to 1/2 inch, as he would have preferred to not shave at all).
  • The State was not able to show that its claimed interests were “compelling”. The claim that small dangerous items could be concealed in a beard was doubted by the Court in relation to a 1/2 inch beard (nothing that hair could be grown quite long and would provide a better hiding place!) The claim that the beard could be shaved off and make identification harder was met by the answer that two photos of each prisoner could be taken, a “before” and “after” the beard, which would enable adequate identification (a policy followed in many other prison systems.)
  • Nor could the State show that this was the “least restrictive” method of achieving even these limited aims, for similar reasons. The Court noted that of course the judgment of prison officials warranted a degree of deference by the courts, as they had to deal with the issues daily; but they said that there came a point where deference had to give way:

without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting outcontraband. (at p 10)

  • One factor that counted heavily against the State was that the vast majority of other State prison systems, and the Federal system, had no such rules and was able to manage the concerns about smuggling and identification adequately.

In the end, then, all the Court agreed that Mr Holt’s religious freedom had been unduly burdened by a rule which could not be justified under the RLUIPA standard.


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