Now that the Court has a trio of recent cases accepting religious exemption claims, and no cases rejecting such claims, I think this will lead judges to take such claims much more seriously — and will embolden litigators to bring such claims. (It should also help the Becket Fund for Religious Liberty, which won both this case and Hobby Lobby, raise funds for such litigation.) And while RFRA only affects federal laws, RLUIPA affects state prisons and state zoning decisions, and over half the states have either state RFRA-like statutes or state constitutional regimes that are similar to RFRA.
So I think Holt, together with the other two cases, will create ripples far outside prison cases. And that’s especially so given its analysis (see below) of how a statute’s underinclusiveness can show that exemptions should be granted, how a statute’s unusualness can do the same, and how demanding the “least restrictive means” test is.
In any event, here is a summary of the court’s argument, and at the end of the concurrences by Justices Ginsburg and Sotomayor:
1. Recall that this case was brought under RLUIPA, which specifically mandates so-called “strict scrutiny” of any “substantial burden” on prisoner religious activity. It was not brought under the Free Exercise Clause, which provides far narrower protection.
2. The prison policy here banned the wearing of beards, which clearly imposed a substantial burden on the challenger: He sincerely believes that he should wear a beard for religious reasons.
3. Returning to something that I coincidentally blogged about yesterday, it doesn’t matter that not all Muslims feel obliged to wear beards: “Petitioner’s belief is by no means idiosyncratic. But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is ‘not limited to beliefs which are shared by all of the members of a religious sect.’ Thomas v. Review Bd..”
4. On then to the strict scrutiny inquiry, under which restrictions on religious practice can still be justified if they are the “least restrictive means” to serve a “compelling government interest.”
a. Religious practice may indeed be restricted by the need to prevent the possession and distribution of contraband. Indeed, the Court “emphasize[d] that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security,” and pointed to three specific ways this could happen:
- “[C]ourts should not blind themselves to the fact that the [statutory] analysis is conducted in the prison setting,” which would presumably come out in the compelling interest / less restrictive alternatives analysis.”
- “[I]f an institution suspects that an inmate is using religious activity to cloak illicit conduct, ‘prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic'” — that refers back to the sincerity requirement.
- More broadly, “an institution might be entitled to withdraw an accommodation if [even a sincere] claimant abuses the exemption in a manner that undermines the prison’s compelling interests” — though it’s not clear to me how this differs from the first point.
Nonetheless, despite the compellingness of the government interest, banning all beards simply wasn’t necessary to accomplish that interest, and less restrictive means (such as allowing very short beards, such as the one that this claimant was willing to accept) were available:
We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1⁄2-inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost preposterous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the evidentiary hearing. An item of contraband would have to be very small indeed to be concealed by a 1⁄2-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1⁄2-inch beard rather than in the longer hair on his head.
b. To be sure, “Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise.” But this respect shouldn’t turn into unquestioning deference to prison officials’ assertions about what is needed for prison security:
[The] respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And 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 out contraband.
c. And even if inmates could keep some contraband in 1/2-inch beards, a total ban still isn’t the least restrictive means of serving the interest (paragraph break added):
The Department failed to establish that it could not satisfy its security concerns by simply searching petitioner’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the 1⁄4-inch beards of inmates with dermatological conditions [beards that are indeed allowed under Department policy -EV]. It has offered no sound reason why hair, clothing, and 1⁄4-inch beards can be searched but 1⁄2-inch beards cannot.
The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and 1⁄4-inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a 1⁄2-inch beard.
d. Prisons also have a compelling interest in “quick and reliable identification of prisoners,” and “any alteration in a prisoner’s appearance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification.” Yet the total ban isn’t the least restrictive means of serving that interest, either, because there are easy alternatives that would do work pretty much as well (paragraph break added):
The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter.
Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the 1⁄2-inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identifications. In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during [his] incarceration.”
The Department argues that the dual-photo method is inadequate because … [it] is unlikely to assist guards when an inmate quickly shaves his beard in order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner’s prison, where inmates live in barracks and work in fields. Counsel for the Department suggested at oral argument that a prisoner could gain entry to a restricted area by shaving his beard and swapping identification cards with another inmate while out in the fields.
[But, f]irst, the Department failed to show, in the face of petitioner’s evidence, that its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. Second, the Department failed to establish why the risk that a prisoner will shave a 1⁄2-inch beard to disguise himself is so great that 1⁄2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1⁄4-inch beards for medical reasons. All of these could also be shaved off at a moment’s notice, but the Department apparently does not think that this possibility raises a serious security concern.
e. The policy is also substantially underinclusive, which the Court treats as a separate grounds for granting an exemption under RLUIPA (paragraph break added):
Although the Department denied petitioner’s request to grow a 1⁄2-inch beard, it permits prisoners with a dermatological condition to grow 1⁄4-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a 1⁄2-inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the neck.”
Hair on the head is a more plausible place to hide contraband than a 1⁄2-inch beard — and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah.
Nor is the underinclusiveness justified on the theory that 1/2-inch beards are materially longer than 1/4-inch beards (“the Department has failed to establish … that a 1⁄4-inch difference in beard length poses a meaningful increase in security risk”) or that religious exemption claims are likely to be much more common than medical exemption claims:
[T]he Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” We have rejected a similar argument in analogous contexts, see Gonzales v. O Centro; Sherbert v. Verner, and we reject it again today.
f. Finally, the Arkansas policy is an outlier — “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” — and that itself suggests that its policy is likely not the least restrictive means of serving a compelling government interest:
“While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.
We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here.
5. Justice Ginsburg, joined by Sotomayor, briefly adds:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.
A passage in Justice Ginsburg’s Hobby Lobby opinion suggested that she was broadly hostile to religious exemptions:
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” United States v. Lee (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Id. The Court, I fear, has ventured into a minefield, by its immoderate reading of RFRA.
And prisoner claims — even ones that aren’t seen as harming others — still require courts to evaluate “the sincerity with which an asserted religious belief is held,” and to “approv[e] some religious claims while deeming others unworthy of accommodation.” But in cases such as Holt, Justice Ginsburg apparently doesn’t think that these concerns are sufficient to justify rejecting religious exemptions.
6. Justice Sotomayor also writes separately, in what seems to be the most pro-prisons opinion of the case, though one that was skeptical of the actions of this particular prison:
In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Of course, that is not to say that cost alone is an absolute defense to an otherwise meritorious RLUIPA claim. See §2000cc–3(c). Thus, we recognized “that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area.”
I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due — that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them. But the deference that must be “extend[ed to] the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.” Indeed, prison policies “‘grounded on mere speculation’” are exactly the ones that motivated Congress to enact RLUIPA….
[Finally,] nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restrictive means requirement. Nor does it intimate that officials must prove that they considered less restrictive alternatives at a particular point in time. Instead, the Court correctly notes that the Department inadequately responded to the less restrictive policies that petitioner brought to the Department’s attention during the course of the litigation, including the more permissive policies used by the prisons in New York and California.