Minimum Beard, Maximum Deference

Meet Gregory Holt, aka Abdul Maalik Muhammed. He prefers to go by his Muslim name since his conversion to Islam, although his legal name remains his birth name of Gregory Holt. In this post, I shall refer to him by the appellation for which he has declared a preference.

Whatever name you call him by, he does not seem to be a particularly nice man. He is serving a life sentence in an Arkansas state prison after being convicted for breaking into his ex-girlfriend’s house and stabbing her in the neck and chest. A colorful past ornament on his criminal resume includes threatening to kill George W. Bush’s daughters. He and a fellow inmate argued about religion and guards found Maalik holding a knife to the other prisoner’s throat. He claims to have trained with terrorists in Yemen, although the veracity of that claim is questionable.

But this isn’t about his moral character, but rather the beard you see sported on his chin in the mug shot above.

Maalik’s understanding of the requirements of his chosen faith of Islam include a requirement that he wear a beard. Ideally, he would not trim his beard at all, but being a prisoner in Arkansas puts something of a crimp in that. Arkansas prisons have a rule that all prisoners must be clean-shaven. There is an exception to allow for a very short (quarter-inch) long beard for prisoners who can demonstrate an appropriate medical condition. But Maalik does not have this medical condition.

When he asked for an exception to the no-beards policy be made, the warden told him that he could choose to follow the Arkansas Department of Correction’s policy, or he could choose to suffer the consequences. Digging into the issue revealed that the prison system articulated concerns about the use of long beards to conceal contraband, to prevent prisoners concealing their identity, and as a safety measure in the event of hand-to-hand violence between prisoners. Maalik tried again, offering a compromise in which he would keep his beard trimmed to not longer than one-half of an inch in length. The warden again refused, saying that he could either produce a doctor’s note and wear a quarter-inch beard, shave, or face punishment.

Maalik then filed, without legal representation,* a challenge to that policy in the Eastern District of Arkansas under section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (hereinafter RLUIPA). The Magistrate Judge who heard the initial hearing of the matter on its merits found the notion of Maalik hiding contraband in a half-inch long beard to be “almost preposterous,” but nevertheless ruled in favor of the warden on the theory that prison officials are granted very great deference in their ability to create and enforce rules they deem necessary for the orderly administration of prisons. That decision was affirmed by the Eighth Circuit, which acknowledged that other prisons have found ways to accommodate prisoners who wish to grow facial hair for any number of reasons.

The Supreme Court of the United States ruled in Maalik’s favor today, with all nine Justices agreeing that RLUIPA requires the Arkansas Department of Correction to grant the half-inch length beard to Maalik as an accommodation to his religious beliefs. The 7-2 split reflects a majority opinion by Justice Samuel Alito, with separate concurrences by Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor.

Alito’s majority opinion notes that Congress defined the term “religious practice” in RLUIPA “capaciously.” (That’s a very cool word.) Guided by explicit legislative instructions, the Courts are to grant maximum deference to any sort of religious practice. Accordingly, Alito’s opinion cites to his own opinion in last term’s case of Burwell v. Hobby Lobby at least eight times, because of the similarity in the statutory language at issue in that case and the “capacious” interpretation of religious practices imposed upon the courts by Congress. So the same four-part test in Burwell, the old Sherbert v. Verner test, applies here:

(a) Maalik (called by his legal name of “Holt” in the opinion) must prove that he has a sincere religious belief requiring him to engage in the religious practice of wearing a beard.

(b) Maalik must then prove that the state imposes a rule that substantially burdens the religious practice of wearing a beard.

(c) The burden then shifts to Arkansas to prove that the beard ban is necessary to further a compelling governmental interest; in this case, that interest was articulated as safety in the prison.

(d) If the Court accepted the articulated compelling interest as actually requiring a rule, Arkansas would need to demonstrate that this particular rule was narrowly-tailored to achieve the interest — meaning that it allowed Maalik as much ability to engage in his religious practice as is possible.

Arkansas did not dispute element (a) at all, which is pretty much par for the course in religious belief cases. But it did challenge, and lower courts agreed with it, Maalik’s claim that the no-beard rule substantially interfered with his religious practices. Arkansas advanced evidence that Maalik was provided with a prayer rug and Islamic religious material, that the warden permitted him to correspond with Muslim religious advisors, provided him with halal food, and permitted him time to pray and to observe Muslim religious holidays. Which is all well and good, Justice Alito said, but irrelevant. The fact that some other aspects of his religious belief were accommodated and thus not at issue did not mean that the prison could choose on its own to not accommodate any and every aspect of Maalik’s religious practices.

Moreover, the state had also argued, and Alito rejected, that not all Muslim men believe that they must wear beards. The undisputed fact that Maalik subjectively believes he must wear a beard, and the rule on its face prohibited the wearing of a beard, was sufficient for Maalik to meet his burden under element (b) of the test.

So, as in the Hobby Lobby case last term, the petitioner’s burden under the re-energized statutory version of the Sherbert free exercise test is a cakewalk: the petitioner articulates a subjective religious belief, and then shifts the burden to the state. Arkansas here described its interest in enforcing the rule as prison safety and security. Which might be a perfectly fine sort of generalized governmental interest, Alito said, but that wasn’t going to be enough in this case:

RLUIPA, like RFRA, contemplates a “more focused” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person — the particular claimant whose sincere exercise of religion is being substantially burdened. … In this case, that means the enforcement of the Department’s policy to prevent the petitioner from growing a ½-inch beard.

And that’s where Arkansas stumbled, in Alito’s analysis. When pressed for specifics about how Maalik’s beard would implicate prison safety and security, the state first said that he could use it to smuggle contraband, like razors or SIM cards for contraband cell phones. Alito said this claim was “hard to take seriously,” noting that even the magistrate who ruled in Arkansas’ favor found the argument “preposterous.” Of note in Alito’s opinion was that the prison did not require prisoners to shave their heads or wear crew cuts, and so it would be much easier for a prisoner to grow his hair long and hide something there than in a half-inch long beard. But Alito did not rest on the underinclusiveness of the rule in question. Instead, he folded in element (d) into his analysis of element (c):

RLUIPA does not permit … unquestioning deference [to the state’s articulated interests]. … That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest. … [W]ithout a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a ½-inch beard actually furthers the Department’s interest in rooting out contraband.

Confusingly, Alito’s very next paragraph goes on to analyze the degree of restrictiveness test, element (d), independently. He quotes the Hobby Lobby opinion that this prong of the test is “exceptionally demanding.”

The next proffered reason, quickly and reliably identifying prisoners, was also found to be an appropriate interest in a generalized sort of way, but not the least restrictive means available to the prison. Alito posited that the prison could take a picture of Maalik with his beard, then require him to shave, and then take another picture of him clean-shaven. In the event of an escape, both pictures could be used to identify him in the event that he shaved his beard to frustrate detection. Alito noted that Maalik offered evidence at trial that many other prisons do exactly this for prisoners who elect to grow facial hair. Here, then, Arkansas failed explicitly on the final prong of least restrictiveness.

Finally, Alito took Arkansas to task for not offering evidence or argument that for some reason (perhaps enhanced security risks?), this particular prison was so different from other prisons around the country that it could have its own rules and it could disregard Maalik’s religious right to wear a beard. Although the opinion takes care to note that it did not articulate a rule that “if other prisons have other rules, this prison has to adopt them,” it winds up looking quite a bit like that: “if other prisons have rules allowing beards, you need to explain why you aren’t like them.” Alito left the door open to allow some future prison some ability to say why it is different from all those other prisons and could withhold an exemption from one of its general rules, or to have a prison withdraw a granted exemption if it were abused, but offered little by way of specifics for when such a thing might be permissible.

Justice Ginsburg’s concurrence is easy to quote, in full:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious be lief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG , J., dissenting). On that understanding, I join the Court’s opinion.

Translated: “Hobby Lobby was wrongly decided and I am in no way signing on to the use of that case as precedent for a damned thing. But this is the correct application of RLUIPA to these facts. If this guy gets an exemption to wear a beard, it doesn’t affect anyone else in the world.” Justice Sotomayor signed on to that.

She also wrote a separate concurrence for herself, pointing to the case of Cutter v. Wilkinson (2005) 544 U.S. 709, underlining that analysis of rules governing prison administration a is heavily context-driven analysis and a rule based upon “mere speculation,” if affirmed, would constitute allowing a warden to “declare a compelling governmental interest by fiat.” More importantly, she underlined that prong (d) of the RLUIPA test does not require that the state “refute each and every conceivable alternative regulation scheme” but only that it “refute the alternative schemes offered by the challenger,” citing to United States v. Wilgus (10th Cir. 2011) 638 F.3d 1274, 1289.

That Sotomayor’s reference to this portion of Wilgus could not command any votes other than her own is telling, because it underlines the power of the fourth and final prong of the Sherbert-RFRA-RLUIPA-Hobby Lobby doctrine of free exercise deference embedded in Alito’s majority opinion.

The Wilgus Court cited by Justice Sotomayor turns out to be only half right: while perhaps a state facing a Free Exercise challenge to enforcement of one of its rules, laws, or regulations may not have to refute every conceivable alternative, it does seem that the state must refute not only those alternative rules that might be proposed by the challenger, but also firmly address and distinguish away from whatever alternative rules might be proposed by a judge, an amicus, or might have been adopted by some other rulemaking jurisdiction after a reviewing court undertakes its own search for alternative rules.

The basic concern of the super-Sherbert doctrine in Hobby Lobby remains what a lot of that opinion’s critics perceived last Term: pretty much anyone can poke a hole in pretty much any law, at least for themselves, and effectively all they have to do is articulate a subjective religious belief that will go functionally unchallenged once it is articulated. Hobby Lobby didn’t overturn or strike down PPACA, it required that there be an exception to a part of PPACA for a private corporation because of the subjective religious beliefs of that corporation’s owners. Holt v. Hobbs, today’s opinion, does not means that all prisoners in all prisons can grow beards if they want. It means that some prisoners, based on their subjective religious beliefs, can grow beards if they want. In an arena where states traditionally enjoy very, very substantial deference to make and enforce whatever rules they wish, individuals get to say, “But that’s against my religion” and cause the state to scramble for justification against the most stringent possible test and in all probability lose.

For now, we will need to continue waiting to see an example of a Free Exercise challenge to a rule in which the rule actually survives analysis under the third and fourth prongs of the test. Until such time as this happens, the Supreme Court and in particular Justice Alito, have signaled nothing to the nation other than that the objection “That’s against my religion” is a catchall exception to pretty much anything.

Whether that is a good thing or not I shall leave up to you. Color me skeptical: this new flavor of Sherbert smacks of tremendous potential for cynical abuse.

• Maalik’s in forma pauperis petition for certiorari to the Supreme Court can be seen here. It’s pretty good for a non-lawyer. However, after filing with SCOTUS as a self-represented party, he picked up some pretty high-quality legal representation.

Image sourced from Arkansas Department of Correction, obtained via NPR, under claim of fair use and public authorship.

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.