Oral Arguments on Prisoner's Religious Beard at Supreme Court

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In today's oral argument in Holt (Muhammad) v. Hobbs, the Court considered the question on which it granted certiorari: whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.

ConLawProf's own Steven Schwinn has penned a terrific preview for the ABA.  The case occurs under the RLUIPA statute, of course, rather than the First Amendment, because RLUIPA provides greater protections as we previously explained, in the same manner that the RFRA statute at issue in last Term's Burwell v. Hobby Lobby Stores, Inc.

If the oral arguments are any indication, the result in Holt/Muhammad will be the same as in Hobby Lobby, but much less divisive and contentious. 

As I argue over in The Guardian, the issue of grooming raises larger issues, which the Justices mostly skirted,  but the Justices clearly struggled with the argument that Arkansas had a compelling governmental interest served by prohibiting short beards.  This discussion was marked by the vast majority of other states that allow prisoners to have beards (40) and the fact that Arkansas allows a medical exemption.  Counsel for the Arkansas Department of Corrections explained that Arkansas had a different system of incarceration than other states (preferring barracks) and had an interesting doctrinal explanation for accommodating the medical condition but not the religious one:

The doctor's prescriptions invariably are get a clipper shave.  And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders.  And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter. 

There was some discussion of the slippery slope variety, with Justice Kagan asking:

So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?

Or as Chief Justice Roberts stated it:

But I ­­ mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win.

And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches.

It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.

As ConLawProf Douglas Laycock appointed to argue on behalf of Holt/Muhammad, noted, Holt/Muhammad

made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.

That Holt/Mohammad's case is before the Court is one of statistical improbability.  Kali Borkoski over at SCOTUSBlog has a terrific audio slideshow that demonstrates some of the difficulties of litigating RLUIPA claims.  In Holt/Muhammad, the petition for certiorari was pro se from a negative Eighth Circuit decision; the vast majority of the 20,000 or so pro se petitions filed in federal courts each year do not reach the appellate level.  Interestingly, the Eighth Circuit specifically ruled that the dismissal of the case "does not count as a “strike” for purposes of 28 U.S.C. § 1915(g)" the Prison Litigation Reform Act which limits pro se prison petitions to "three strikes."  Later in the Term in Coleman-Bey v. Tollefson, the Court will be considering a construction of the three strikes limit; but perhaps Holt/Muhammad points to a larger issue with the limitation.  

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