Friday, January 13, 2012
Writing the opinion in Grayson v. Schuler, Judge Posner, in his imitable style, has rejected what he terms a "Rastafarian exception" to a prison practice of allowing Rastafarians, but not others, to have dreadlocks. In case readers of the opinion need a bit of tutelage on the subject, Posner instructs
"Dreadlocks can attain a formidable length and density, as shown in this photograph of the late Jamaican musician Bob Marley (a Rastafarian):"
Grayson, a former inmate of the Big Muddy Correctional Center, an Illinois prison, appeared pro se in the federal courts, arguing that the correctional officer who ordered the forcible shearing of his dreadlocks violated the Free Exercise Clause. The officer had declared that Grayson's hair caused a security risk. Grayson contacted the prison chaplain who informed him that "only Rastafarians are permitted to wear dreadlocks." Grayson, Posner explains,
is not a Rastafarian, but a member of the African Hebrew Israelites of Jerusalem; and according to the chaplain the members of that sect are not required by their faith to wear dreadlocks (this appears to be correct), and therefore, he concluded, the plaintiff was not entitled to wear them. (It’s the “therefore” that’s the issue in this appeal.)
Interestingly, the chaplain's opinion (as well as Posner's) about the tenets of the African Hebrew Israelites could raise an Establishment Clause concern. Posner, however, discusses the vows of the Nazirites which includes letting the hair of the head "grow long," and citing to the Biblical character of Samson, whose seven braids, "could well have been dreadlocks."
Posner cites Employment Division v. Smith, 494 U.S. 872 (1990), with its rule regarding neutral laws of general applicability just discussed by the Supreme Court in Hosanna-Tabor, but notes that the applicability of Smith to prisoners is uncertain because of an earlier Supreme Court decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), "which requires prison authorities to “accommodate” an inmate’s
religious preferences if consistent with security and other legitimate penological concerns." Posner notes that O'Lone was not expressly overruled by Smith, or by Cutter v. Wilkinson, 544 U.S. 709 (2005) - - - neither of which occurred in a prison context, of course - - - and adds that "we’re not supposed to declare a decision by the Supreme Court overruled unless the Court makes clear that the case has been overruled, even if we’re confident that the Court would overrule it if the occasion presented itself."
Yet ultimately Posner states that the case does not rest on "accommodation" surviving Smith, but on the arbitrary discrimination favoring Rastafarians. Indeed, it is this arbitrary discrimination that supports Posner's reversal of the summary judgment finding the officer was entitled to qualified immunity. The officer "seems just to have been applying the Rastafarian exception, which could not reasonably be thought constitutional."
[image: from the opinion;
and thanks to a reader, we can now identify the correct source of the image as photographer David Corio, here]