Posted on by Marc O. DeGirolami

Hair and Prison in Nineteenth Century Law

Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”

The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.

But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.

Posted on by Mark Movsesian

The Weekly Five

This week’s collection focuses on religious law and critiques. Steve Smith argues that Ronald Dworkin misunderstands theistic versions of morality; Oren Gross contrasts Jewish and secular ideas about amending the law; Martin Gardner addresses what Mormon Church doctrine has to say about retributive punishment; and Gustavo Kaufman takes on the UK Supreme Court’s decision in the Jews Free School Case. We also include Ian Bartrum’s assessment of the US Supreme Court’s grant of cert in Town of Greece, the legislative prayer case.

1. Steven Douglas Smith (San Diego), Is God Irrelevant? Smith reviews Ronald Dworkin’s posthumous work, Religion without God. Smith maintains that Dworkin misunderstands the disagreement between theists and non-theists. The divide is not between people with different views of morality, he says, but “between those who think that the universe, including the world of humanity, is the product of a loving and intelligent author or designer who created it according to a plan and for a good purpose, on the one hand, and on the other those who reject the belief in any guiding intelligence and any encompassing and mindful plan. That is a difference with profound implications for most of the great issues of life (including, almost certainly, issues implicating law and politics).”

2. Ian C. Bartrum (University of Nevada-Las Vegas), The Curious Case of Legislative Prayer: Town of Greece v. Galloway. Ian Bartrum considers why the Supreme Court granted cert in this case, currently under review, and why the Solicitor General has sided with the town. He infers that some of the Justices may hope to use the case to abandon the endorsement test, and that the Administration has intervened to limit the potential damage.

3. Oren Gross (University of Minnesota), Venerate, Amend … and Violate. This paper compares secular law, which people may amend to meet new circumstances, with divine law, which, in theory, people may not amend. Using Jewish law as an example, Professor Gross examines the way in which rabbis have justified deviating from the text of religious law in extraordinary situations.

4. Gustavo Ariel Kaufman (Independent), Racial Discrimination vs. Religious Freedom in the JFS Decision. Kaufman reviews the UK Supreme Court’s 2009 decision in the “Jews Free School case” from 2009, which held that a Jewish school’s decision to exclude a child based on parentage violated racial anti-discrimination laws. Kaufman argues that the court’s decision disparages religious freedom and contradicts European law.

5. Martin R. Gardner (University of Nebraska), Viewing the Criminal Sanction through Latter-Day Saint Thought. This paper addresses criminal law from the perspective of the doctrines of the Mormon Church. Specifically, the author argues that the church’s doctrines of agency and pre-mortal existence support some aspects of retributive theory.

Posted on by Marc O. DeGirolami

Supreme Court Agrees to Hear Muslim Prisoner Beard Case

The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.

The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.

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Guiora, “Tolerating Intolerance”

This January, Oxford University Press published Tolerating Intolerance: The Price of Protecting Extremism by Amos N. Guiora (S.J. Quinney College of Law, Tolerating IntoleranceThe University of Utah).  The publisher’s description follows.

Over the years, numerous tragic events serve as a reminder of the extraordinary power of extremism, both on a religious and secular level. As extremism confronts society on a daily basis, it is essential to analyze, comprehend, and define it. It is also essential to define extremism narrowly in order to avoid the danger of recklessly castigating for mere thoughts alone.

Tolerating Intolerance provides readers with a focused definition of extremism, and articulates the tensions faced in casting an arbitrary, capricious net in an effort to protect society, while offering mechanisms to resolve its seemingly intractable conundrum. Professor Guiora examines extremism in six different countries: Germany, Israel, the Netherlands, Norway, the United Kingdom, and the United States through interviews with a wide range of individuals including academics, policy makers, faith leaders, public commentators, national security and law enforcement officials. This enables both an in-depth discussion of extremism in each country, and facilitates a comparative analysis regarding both religious and secular extremism.

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Korteweg & Yurdakul, “The Headscarf Debates”

Next month, Stanford University Press will publish The Headscarf Debates by Anna C. Korteweg (University of Toronto) and Gökçe Yurdakul (Humboldt University of Berlin).  The publisher’s description The Headscarf Debatesfollows.

The headscarf is an increasingly contentious symbol in countries across the world. Those who don the headscarf in Germany are referred to as “integration-refusers.” In Turkey, support by and for headscarf-wearing women allowed a religious party to gain political power in a strictly secular state. A niqab-wearing Muslim woman was denied French citizenship for not conforming to national values. And in the Netherlands, Muslim women responded to the hatred of popular ultra-right politicians with public appeals that mixed headscarves with in-your-face humor. In a surprising way, the headscarf—a garment that conceals—has also come to reveal the changing nature of what it means to belong to a particular nation.

All countries promote national narratives that turn historical diversities into imagined commonalities, appealing to shared language, religion, history, or political practice. The Headscarf Debates explores how the headscarf has become a symbol used to reaffirm or transform these stories of belonging. Anna Korteweg and Gökçe Yurdakul focus on France, Germany, and the Netherlands—countries with significant Muslim-immigrant populations—and Turkey, a secular Muslim state with a persistent legacy of cultural ambivilance. The authors discuss recent cultural and political events and the debates they engender, enlivening the issues with interviews with social activists, and recreating the fervor which erupts near the core of each national identity when threats are perceived and changes are proposed.

The Headscarf Debates pays unique attention to how Muslim women speak for themselves, how their actions and statements reverberate throughout national debates. Ultimately, The Headscarf Debatesbrilliantly illuminates how belonging and nationhood is imagined and reimagined in an increasingly global world.