Regulation of Prisoners’ Beards

Holt v. Hobbs, ___ U.S. ___ (2015).  As discussed here, this case reached the Supreme Court via a handwritten petition for certiorari by a Muslim prisoner in an Arkansas state corrections facility who wished to grow a one-half inch beard, due to his religious beliefs.  The lower courts had sided with Arkansas Department of Corrections, which had enforced a prison policy against beards that excepted only prisoners with diagnosed skin conditions and, even then, permitted only one-quarter inch beards.  A unanimous Supreme Court of the United States, however, agreed with Holt that the prison policy violated the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. (“RLUIPA”).  The opinion of the Court, by Justice Alito, held that the prison policy “substantially burdens petitioner’s religious exercise,” and that “the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests,” as the RLUIPA requires.

Under the RLUIPA, Holt had the initial burden of proving that the Department’s policy implicated his religious exercise pursuant to a sincerely held religious belief and that the policy “substantially burdened that exercise of religion.”  Justice Alito found that Holt had satisfied those obligations.  The District Court had found that Holt’s religious rights had not been substantially burdened because he had been allowed to have a prayer rug, to correspond with a religious advisor, to maintain the required diet, and to observe religious holidays.  Justice Alito noted that this analysis, drawn from some First Amendment cases, was inapplicable, since the RLUIPA “provides greater protection.”  The statute asks whether the policy at issue posed a substantial burden, not whether Holt was able to “engage in other forms of religious exercise.”  Nor did it matter that Holt’s religion would give him “credit” for trying to practice his religion even if he were ultimately barred from doing so, another rationale of the District Court.  The RLUIPA applies to any exercise of religion, “regardless of whether it is ‘compelled.'”

Since Holt had met his burden, the Department then had to show that its policy was “in furtherance of a compelling governmental interest” and that the policy was “the least restrictive means of furthering that compelling governmental interest.”  The Department claimed that the beard policy prevented prisoners from hiding contraband in their beards.  But Justice Alito found that argument “hard to take seriously,” since contraband would have to be very small and a prisoner would have to fnd a way to keep the contraband from falling out of the beard.  The prison did not require shaved heads or short haircuts, so prisoners could more readily hide contraband in their hair than in half-inch beards.

Nor was the beard policy the least restrictive means of weeding out contraband.  The Department did not show why it could not simply search Holt’s beard, especially since prisoners’ clothing, hair, and any authorized one-quarter inch beards were presumably already being searched.

The Department also contended, however, that the beard policy prevented prisoners from disguising their identities.  Justice Alito did not find that rationale persuasive either, since even assuming that it was a compelling interest, there were less restrictive means available to advance such an interest.  A system of photographing all inmates when they first enter prison and periodically thereafter (including, for someone like Holt, after he had grown a one-half inch beard) would be less restrictive.  It did not help the Department’s cause that the Department failed to show “why the vast majority of States and the Federal Government permit inmates to grow 1/2-inch beards, either for any reason or for religious reasons, but [the Department] cannot.”  The practices of other prison systems were “not necessarily controlling,” but were certainly relevant.

The RLUIPA is a powerful statute for the protection of religious rights in prisons, but Justice Alito noted that it has limitations.  First, courts cannnot “blind themselves” to the fact of the prison setting.  Second, if there are indications that a prisoner is using religious activity to conceal unlawful conduct, prison officials may question the authenticity of the claimed religious belief.  Finally, even in the case of a sincere religious belief, the prison “might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.”