Should Short Beards Be Allowed Behind Bars?

Oct 6, 2014
Originally published on October 6, 2014 5:30 pm

The U.S. Supreme Court hears arguments Tuesday in a major test of religious freedom. At issue is a law enacted by Congress in 2000 to shore up the religious rights of prisoners.

What makes the case particularly unusual is that it was brought by a prisoner, with no help from lawyers. In a 15-page handwritten legal petition, the prisoner, Gregory Holt, asked the Supreme Court to review a decision by Arkansas prison authorities denying him permission to wear a half-inch beard. He lost in the lower courts, though the federal magistrate who first heard his case called it "almost preposterous" to think that anyone could hide something in a half-inch beard.

Holt broke his losing streak when, against all odds, the Supreme Court agreed to hear his appeal. Now Holt is represented by the Becket Fund for Religious Liberty and one of the country's leading authorities on religious rights, professor Douglas Laycock of the University of Virginia law school

Normally, prisoners give up many of their rights when incarcerated. But in 2000, Congress passed the Religious Land Use and Institutionalized Persons Act, known by the abbreviation RLUIPA, to help shore up the religious rights of prisoners. The act is the sister statute to the law at issue in the Hobby Lobby contraception case last term. Both statutes seek to enhance religious rights.

RLUIPA bars prison officials from imposing a "substantial and unjustified burden" on the religious exercise of inmates.

Holt, who prefers to be called Abdul Maalik, may have exercised his right to petition the Supreme Court in a model way, but he is no sweetie.

According to Arkansas' brief, Holt describes himself as a Yemeni-trained terrorist. In 2005, he was convicted of threatening President Bush's daughters. He is currently serving a life term for breaking into the home of his ex-girlfriend and stabbing her in the neck and chest. The state says that he has continually threatened jihad against various public officials and was found holding a knife against a fellow inmate's throat after a religious dispute.

Despite this background, a whole host of unlikely bedfellows have come forward to support Holt in this case: groups from the ideological right and left, leading organizations that represent corrections officials throughout the United States, and the federal government.

Holt describes himself as a devout Muslim whose religious tenets require that he not cut his beard. As a compromise, he asked to be allowed to wear a half-inch beard. But Arkansas corrections officials refused, citing the state's policy against all beards in prison except for medical reasons.

The state did not respond to NPR's inquiries for this story. Its only ally in the case is the state of Alabama, which filed a brief on behalf of itself and more than a dozen states asking the court to defer to prison officials and their expertise in matters such as this. "Prison administrators know better than judges about the unique safety problems and resource constraints in running a prison," says Andrew Brasher, the solicitor general of Alabama. "And that's one of the reasons why the Supreme Court has always deferred to their judgment when weighing prisons' religious liberty claims."

But professor Laycock, representing Holt, counters that Congress was "unwilling to give unlimited deference" to prison officials on this issue because of a history of "egregious" and unjustified intrusions on religious liberty. "When there's clearly a security interest and the prisons can explain it in clear terms, and document it with some examples where it's happened somewhere," says Laycock, "they're naturally going to get deference from the judges. But they didn't do any of that here."

In fact, 43 states and the federal prison system allow beards — many without any limit at all on the length of beard. Briefs filed by former prison wardens and corrections officials note that it is much easier for inmates to hide contraband like weapons or drugs in their clothes, hair or body cavities than it is to hide them in short beards. And yet, as Laycock observes, no prison requires inmates to "shave their heads and go naked."

But Alabama's Brasher notes that prison systems are not all the same. "I think this kind of argument, that essentially everyone else does it so you have to as well, undermines the notion of deference to state administrators," he says.

Professor Laycock responds that the Arkansas corrections officials who testified in Holt's case demonstrate not expertise but ignorance. "There were 43 other prison systems that would allow what they prohibited. The accreditation standards encouraged what they prohibited. And they had no knowledge of any of that. So they couldn't really testify as experts," he contends.

The bottom line, according to Laycock, is that if the federal statute aimed at protecting religious rights in prison doesn't cover a short half-inch beard worn for religious purposes, it likely covers nothing.

The Supreme Court has ruled on RLUIPA just once. In 2005, the court upheld the statute as constitutional but didn't spell out how it is to be applied. This case will be the first time the court will tackle the question of how to balance the religious rights of prisoners and still defer to prison officials seeking to keep their facilities safe.

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MELISSA BLOCK, HOST:

In a stunning move today, the Supreme Court stepped out of the gay marriage debate, at least for now. The justices refused to review lower court decisions that struck down state bans on same-sex marriage. That decision to not decide will nonetheless have an immediate and dramatic effect, soon bringing to 30 the number of states where gay marriage is legal. NPR's Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Without saying or writing a word, the justices let stand three appeals court decisions covering parts of the South, Midwest and West. That means that same-sex couples will now be able to marry in 11 more states including Utah, Oklahoma, Kansas, Colorado, Wyoming, North and South Carolina, Virginia, West Virginia, Indiana and Wisconsin. Add those 11 states to the 19 states that already allow gay marriage, and you have 30 states where such unions are legal. Thousands more same-sex couples are expected to begin marrying immediately. In Virginia, for instance, the state began issuing marriage licenses to same-sex couples earlier this afternoon.

Of course, some appeals court could, this year or next, uphold a same-sex marriage ban. Were that to happen, the Supreme Court would likely have to resolve the conflicting decisions, but by then and there likely will be tens of thousands more same-sex couples married in states that had outlawed the practice. And it's hard to imagine the justices then telling those couples that they're not married after all.

Gay marriage opponents were largely silent today, but conceded privately that there would be chaos if the high court later decides to backtrack. Amy Howe is editor of Scotusblog, the leading Supreme Court blog.

AMY HOWE: The Supreme Court justices are very smart people, and I don't think they're going to be able to put the genie back in the bottle.

TOTENBERG: Howe says that the message to the lower courts may be grudging, but it's pretty clear.

HOWE: Keep on doing what you're doing. We may not be ready to proclaim a national, constitutional right to same-sex marriage, but we're not going to stop you from doing it on a state-by-state basis.

TOTENBERG: Some in the gay community, like Evan Wolfson of Freedom to Marry, had hoped for more.

EVAN WOLFSON: It's not a done deal until it's done. And we're going to keep making the case that every day matters and couples shouldn't have to fight state-by-state, year-by-year for the freedom to marry.

TOTENBERG: Others, however, saw the court's action as a huge victory. David Codell is constitutional litigation director for the National Center for Lesbian Rights.

DAVID CODELL: I think that today is one of the greatest days in the history of lesbian and gay rights in the United States.

TOTENBERG: There are no other cases before the court this term of the magnitude of same-sex marriage, but there are important cases. Tomorrow, the court will hear a religion case that tests how much prison officials must accommodate an inmate's religious practices. The statute at issue in the case is called The Religious Land Use and Institutionalized Persons Act, known by the acronym - wait for it - RLUIPA. It's sort of the sister statute to the one at issue in the Hobby Lobby contraception case last term. Both were enacted by Congress to strengthen religious rights. RLUIPA is aimed principally at people in prison and bars the government from imposing any substantial and unjustified burden on their religious exercise.

Initially, this case had no lawyers - just an Arkansas prisoner asking for a hearing. Gregory Holt, also known as Abdul Maalik, sent a handwritten, 15-page brief to the court, challenging Arkansas's refusal to allow him to wear a half-inch beard. The court agreed to hear the case, and now Holt is represented by the Becket Fund for Religious Liberty and Douglas Laycock, one of the country's leading authorities on religious rights.

Let me dispel any notions at the outset that the prisoner here, Mr. Holt, is some sort of a sweetie jailed on a minor charge. He's not. The state of Arkansas notes in its brief that Holt describes himself as a Yemeni-trained terrorist. In 2005, he was convicted of threatening President Bush's daughters. He's currently serving a life term for breaking into the home of his ex-girlfriend and stabbing her in the neck and chest. In addition, according to the state, he was found holding a knife against a fellow inmate's throat following a religious dispute.

Despite this background, Holt has the support in this case not only of groups on the ideological right and left, but also the federal government and all the leading groups that represent corrections officials throughout the United States.

He describes himself as a devout Muslim who, according to the tenets of his religion, is required to wear a beard. Arkansas corrections officials, however, said no, citing the state's policy against beards in prison to prevent inmates from hiding contraband there.

The state of Arkansas did not respond to inquiries for this broadcast. Its only ally in the case is the state of Alabama, which filed a brief on behalf of more than a dozen states. Andrew Brasher is the top appellate advocate for Alabama.

ANDREW BRASHER: Prison administrators know better than judges about the unique safety problems and resource constraints in running a prison. And that's one of the reasons the Supreme Court is always deferred to their judgment when weighing prisons' religious liberty claims.

TOTENBERG: But, representing Holt, Professor Laycock of the University of Virginia counters that Congress, after holding extensive hearings, was unwilling to give unlimited deference to prison officials because of a history of what he calls egregious and unjustified intrusions on religious liberty.

DOUGLAS LAYCOCK: Where there's clearly a security interest and the prisons can explain it in clear terms and document it with some examples where it's happened somewhere, they're naturally going to get deference from the judges. But they didn't do any of that here.

TOTENBERG: Indeed, 43 states and the federal prison system allow beards. Briefs filed by former prison wardens and corrections officers associations note that it's much easier to hide weapons, drugs or other contraband in clothes, hair or body cavities than it is to hide them in short beards. And Arkansas does allow shoulder-length hair. But Alabama's Brasher notes that prison systems are not all the same.

BRASHER: I think this kind of argument that essentially everyone else does it, so you have to as well, undermines the notion of deference to state administrators.

TOTENBERG: Professor Laycock counters that the Arkansas corrections officials who testified in Holt's case demonstrated not expertise, but ignorance.

LAYCOCK: There were 43 other prison systems that would allow what they prohibited. The accreditation standards encouraged what they prohibited. And they had no knowledge of any of that. So they really couldn't testify as experts.

TOTENBERG: The bottom line, Laycock says, is that if the federal statute aimed at protecting religious rights in prison does not cover short beards worn for religious purposes, it likely covers nothing. The court hears arguments in the case tomorrow with a decision to come by the end of the term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.