A very interesting paper by Dawinder S. Sidhu (New Mexico), Religious Freedom and Inmate Grooming Standards, about the appropriate standard for claims for exemption under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment. The abstract follows.
This Article explores the Eleventh Circuit’s repeated rejection of challenges, under the First Amendment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), to “restrictive” inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states’ policies, and recent legal developments, that the Eleventh Circuit’s approach in upholding these policies is no longer sustainable.
Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states — including the three states within the Eleventh Circuit — that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the “specific plaintiffs” in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit’s routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.
Accordingly, I propose the following:
Yesterday, the Pew Forum released a fascinating demographic study of Christianity around the world. Christians make up the largest religious group in the world today, about two billion people, roughly one-third of the world’s population. By comparison, Muslims, the next largest group, make up less than a quarter. Geographically, Christians are quite dispersed. Although 100 years ago the vast majority lived in Europe, today only 26% of Christians are there. Roughly 37% live in the Americas, 13% in Asia and the Pacific, and 24% in sub-Saharan Africa. These numbers reflect the much-noted shift of Christianity to the “Global South” over the last century. With regard to church traditions, the study finds that roughly half of the world’s Christians are Catholic, about 40% Protestant, about 12% Orthodox, and about one percent members of new traditions like the Jehovah’s Witnesses and Mormons. The report contains helpful interactive maps that illustrate the global distribution of Christians.
Last Friday, the 11th Circuit dismissed a lawsuit a graduate student had brought against Augusta State University in Georgia, arguing her expulsion from the university’s school-counseling program violated her constitutional rights. The student, a Christian, had expressed skeptical views about homosexual identity and conduct, and the university required her to participate in a “remediation plan” to make sure that her views did not affect the counseling she would provide clients in the program’s clinical practicum, particularly clients from the “gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ) populations.” When she refused to do so, the university expelled her. The 11th Circuit ruled that her expulsion violated neither her free speech nor free exercise rights. Briefly, with respect to the former, the court noted that the student would be advising clients in a university-sponsored clinic; the university thus could require her to conduct herself in accordance with the American Counseling Association’s code of ethics, which forbids counselors from imposing moral views on clients. The university was not disciplining the student for her religious views, in other words, but for failing to agree to put them aside in accordance with her professional responsibilities. With respect to the student’s free exercise claims, the court held that school’s requirement that students abide by the ACA code, notwithstanding their own religious convictions, was neutral and generally applicable, and rationally related to the university’s legitimate interest in maintaining its accreditation. The case is Keeton v. Anderson-Wiley (Dec. 16, 2011).