By Gordon Hull
No, this is not clickbait. Sometimes, the headline tells the story. Gregory Holt, aka Abdul Maalik Muhammad (the Court uses the “also known as” language when referring to him, and I am not sure about the status of the two different names), an inmate in an Arkansas state prison, wanted to grow a beard, in accordance with his religious beliefs. The Arkansas Department of Corrections has a strict no-beard policy, with a medical exception (allowing those with certain dermatological conditions to grow a beard of up to ¼ inch length), on the grounds that inmates could smuggle contraband in their beards, and that it is necessary that prisoners remain clean-shaven in order to easily identify them. Sensing an uphill struggle, Muhammad proposed to grow a half inch beard as a sort of “compromise,” as he put it. The Department would have nothing of it, and so Muhammad took the argument to court. Both the district court and the 8th Circuit thought that required deference to the experts at the Dept. of Corrections outweighed any concerns they might have.
Today, the Supreme Court unanimously ruled in Muhammad’s favor. Justice Alito wrote the pithy opinion. To the claim that beards were good places for smuggling contraband, the Court pointed out that the Department’s testimony failed to provide any evidence that anyone had smuggled anything in their half-inch beard, in Arkansas or elsewhere (I really wonder whether Alito’s argument hangs on the beard being short or not. In other words, what if Muhammad had asserted the right to a full, unshaven beard? I suspect Muhammad wonders this, too). The Department also conceded that inmates could hide contraband in other places, like the hair on their heads their clothes (Alito: “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.”). So too, the Department could search beards, rather than prohibit them (Alito: “The Department already searches prisoners’ hair and clothing, and it presumably examines the 1∕4-inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and 1∕4-inch beards can be searched but 1∕2-inch beards cannot.” They might also “adopt the less restrictive alternative of having the prisoner run a comb through his beard.” Alito’s wry incredulity really is worth reading!). Department witnesses also failed to explain why taking a ‘with beard’ and ‘without beard’ photo of prisoners wouldn’t solve the identification problem in Arkansas, since such a policy worked perfectly well in numerous other places.
So much for the policy, the only surviving defense of which was that courts should defer to Corrections officials, even when those officials had been completely inept in defending their policy. Justice Sotomayor accordingly added in concurrence that the Court wasn’t failing to defer – it was that the Department had failed to explain why the proffered less-intrusive means wouldn’t satisfy its compelling interest. In other words, deference would be forthcoming “when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them.”
At this point, you would be reasonably justified in thinking the Court ruled on First Amendment grounds. But it turns out that the case is entirely based on statutory grounds, and the statute in question, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) was passed at the same time as its more well-known counterpart, the Religious Freedom Restoration Act (RFRA). Both laws were passed to provide more protection for religious exercise than an earlier Court had said were guaranteed by the Constitution. In Oregon v. Smith, the Court had ruled that Oregon was within its rights to deny unemployment benefits to Native Americans who ingested peyote for religious reasons. The RLUIPA and RFRA were designed to overrule Smith and, in essence, provided a statutory requirement that courts decide free exercise cases using strict scrutiny: restrictions had to serve a compelling governmental interest, and they had to be narrowly tailored, not burdening any more religious exercise than is absolutely necessary to achieve that governmental interest.
What’s interesting here is that the RFRA is also the basis of last year’s Hobby Lobby decision (recall here), which struck down the Affordable Care Act’s (ACA: “Obamacare”) provision requiring that employers provide contraceptive coverage as part of their employees’ health plans. The Court argued there that “closely held” for-profit corporations couldn’t be required to provide this coverage over the owners’ religious objections, since there was a less-intrusive means, in the form of requiring that the insurance company provide the coverage directly, with the government picking up any extra charge (recall that this work-around is in limbo, however). Government testimony in Hobby Lobby explicitly worried about the extension of the Hobby Lobby principle to other areas – anti-vaxxers, for example. Moreover, as Joey Fishkin said at the time, the disturbing part of Hobby Lobby was that it probably wasn’t about the ACA at all: it was about the demand of the religious right that its preferred policies were more important than women’s health, and that their right to see these preferences enacted extended deep into what one might have thought was the public sphere.
Well, hah. I thought the Hobby Lobby case was a lousy decision for all sorts of reasons. But here, today, Justice Alito applies his interpretation of the RFRA in Hobby Lobby to get the right answer.
It seems to me that the reliance on Hobby Lobby is significant in another way: the emphasis on the state’s failure to explain why less intrusive means couldn’t solve the problem could work in favor of the government in Little Sisters v. Burwell, where the plaintiffs are essentially arguing that asking for a religious exemption to a rule is burdensome enough to their religion to overturn the entire contraception mandate (if nothing else, that argument seems to confirm Fishkin’s analysis; the argument seems really to be that religious employers ought to be able to stop their employees from getting contraception. No, I don’t think that argument has any merit). The Hobby Lobby opinion pretty clearly endorsed the exemption request strategy as a satisfactory less-intrusive-means, and the decision today seems to legitimate that way of thinking about RFRA compliance.
Which proves that you can make something out of nothing after all. Or at least one can hope.
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