Mark and I have recorded a podcast on this week’s Supreme Court decision in Holt v. Hobbs, the prison beard case. We discuss the facts, the holding, and broader implications for RFRA and religious liberty.
Mark and I have recorded a podcast on this week’s Supreme Court decision in Holt v. Hobbs, the prison beard case. We discuss the facts, the holding, and broader implications for RFRA and religious liberty.
Not too much to add to Rick Garnett’s analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:
1. Rick quotes Justice Ginsburg’s one-paragraph concurrence, which states that she only joins the Court’s opinion “on th[e] understanding” that the accommodation here “would not detrimentally affect others who do not share petitioner’s belief.” I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose “significant burdens on identifiable third parties” (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that “detrimentally affect” anybody who doesn’t share the claimant’s religious beliefs. I don’t believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a “detrimental effect” under that approach? Might symbolic harms count? I don’t see why they wouldn’t. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources (“the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration”). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not “detrimentally affected” by the inequality of treatment that results from Holt’s accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.
2. Following from that point, the heart of these statutes (as Rick also notes) is to provide “very broad protection for religious liberty” or “expansive protection for religious liberty,” as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects “unquestioning deference” but it acknowledges the “respect” that is due the prison administrators’ “expertise”). Should not Hobby Lobby, in which there was no such presumptive deference or “respect” accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.
3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.
The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.
The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I’ll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito’s majority opinion, though with some interesting language about the individual components of the test).
For now, though, I’ll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.
Mark and I will have a podcast on the decision in a few days.
Mark and I have recorded another in our podcast series, this time on the “prison beard case,” Holt v. Hobbs, argued this week at the Supreme Court. We discuss the claim and the oral argument, and make some predictions. To get our other podcasts, click here.
Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose “significant” harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.
Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn’t true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it’s only by ignoring, flattening out, or misdescribing the military’s interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly “significant” means) be to destroy RFRA and render many religious accommodations unconstitutional.
Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties–and a class of readily or easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:
1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed at a woman’s throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.
2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.
3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to interests in order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.
To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.
I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.
After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”
What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.
I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.
The redoubtable Peter Berger has a winning column on them. A few years back I had one, but despite Berger’s plausible claim that “the power of the beard as a profane symbol of adult masculinity should not be underestimated,” my wife for some reason did not hold my beard in very high esteem.
Berger’s post is prompted in part by the legal controversies involving the Amish beard cutting incident in Cleveland, now being tried as a federal “hate crime,” and the trial of alleged murderer Major Nidal Hasan in Fort Hood, Texas, who was ordered to shave his beard for trial. Here is Berger’s beards and religion angle (but you really should not miss the rest):
Needless to say, religion is a particularly rich field for the beard as sacramental symbol. There are significant differences between Latin and Greek Christianity. Bearded priests have become the norm in Eastern Orthodox churches; in the Roman Catholic Church, while there are some monastic orders whose monks wear beards, secular priests are normally clean-shaven. I don’t know whether there are “grooming regulations” in either case, nor do I know of any in Protestant churches. Mormons stand out: Young men going out on their two-year missionary stints must be clean-shaven, as must students at Brigham Young University. Beards have become the trademark of Orthodox Judaism, though the Torah does not command them directly (Leviticus only has rules for shaping the beard). I would imagine that there are different deductions from these rules in the Talmud. Jews in mourning, while “sitting shive”, don’t shave and let the stubbles sit during this period. Sikhs are very intent on their luxurious beards. Many Hindu ascetics have beards, but that is not so much a symbol as the result of their having no possessions, not even a razor (they do beg—is there no pious barber who can donate a free shave?). I have no knowledge of Buddhist attitudes to facial hair. But of course we are most aware of the role of beards in contemporary Islam. Beards are the male equivalents of female headgear. If young men in Turkey come out of the closet as Islamists and consequently drive their Kemalist parents crazy, their young sisters achieve the same result by covering their hair with the scarves that signify Islamic modesty. As far as I know, there is no commandment to wear beards in the Koran, though there is an authoritative tradition (hadith) according to which the Prophet Muhammad did issue such a commandment.
I promised that there would be no theoretical or practical conclusions. Let me just say this: There are very few “natural” symbols. (Though the lion may be a “natural symbol” of might, as against the mouse.) Beyond such clear cases, anything can symbolize anything. Symbols change over time. As to beards, often they symbolize nothing beyond themselves—as Freud did not say, but might have said: Sometimes a beard is just a beard. Beards have carried all sorts of symbolic freight. In the area of religion, it would be nice if beards symbolized moderation and tolerance.
Ordinarily we do not post about too many cases brought by prisoners alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reinstated in the context of land use and prison disputes the strict scrutiny balancing regime that Employment Division v. Smith had rejected. Yet it may be of interest for readers to know that these cases are brought quite frequently by prisoners. The prisoners generally lose.
But the Fourth Circuit yesterday gave a prisoner suing under RLUIPA a win. Plaintiff is a Sunni Muslim prisoner serving multiple life sentences in Virginia who brought a RLUIPA claim when prison officials refused to let him grow a 1/8 inch beard in compliance with the requirements of his faith. In 1999, the prison instituted a grooming policy prohibiting the wearing of beards, unless someone obtained a “No Shave Pass” from the prison’s medical authority, in which case they were allowed to sport a 1/4 inch beard.
Writing for a unanimous panel (which included Retired Supreme Court Justice Sandra Day O’Connor and Judge Dennis Shedd), Chief Judge Traxler first found that the grooming policy imposed a substantial burden on the plaintiff’s religious practice. The Court also held that the state had a compelling interest in the grooming policy — accepting the prison’s claims about security, health, concerns about prisoner identification, and others.
The case was vacated and remanded on the issue of whether the policy was the least restrictive means of advancing the state’s compelling interest. The plaintiff argued that a religious exemption for a 1/8 inch beard would have been just such a less restrictive means, but the prison officials rejected that solution, reasserting their interests in security and health. That was deemed an insufficient response by the court: the prison officials’ affidavits did not:
address the feasibility of implementing a religious exemption or discuss whether a one-eighth-inch beard would in fact implicate the identified health and safety concerns in the Policy . . . . [T]hey fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.
The key here was that the prison officials failed even to address the possibility of the 1/8 inch beard solution, or to explain why it would not fulfill the aims of the policy. “That explanation, when it comes, will be afforded due deference.”
The case is Couch v. Jabe, 2012 U.S. App. LEXIS 9602 (4th Cir. May 11, 2012).
This morning, Rabbi Menachem Stern, a Chabad Lubavitch rabbi, will join the U.S. Army Chaplain Corps. It wasn’t always clear he could. Like other Hasidic Jews, Rabbi Stern interprets a passage from Leviticus to require men to wear beards. Army regulations generally forbid beards. Rabbi Stern sued, arguing that the no-beards rule, as applied to a Hasidic Jew like him, violated the Free Exercise Clause. The Army settled the case and granted Stern a waiver, as it has done for Sikh and Muslim soldiers whose religious beliefs also require them to wear beards.
I haven’t seen Rabbi Stern’s complaint, but I imagine he relied heavily on then-Judge Alito’s famous decision in Fraternal Order of Police v. City of Newark (3d Cir. 1999), which struck down a police department’s no-beards rule. The rule exempted police officers who grew beards for medical reasons, but not those who grew beards for religious reasons. Alito concluded that denying an exemption for religious reasons, while allowing an exemption for secular reasons, violated the Free Exercise Clause. Like the police department regulations in Fraternal Order of Police, Army regulations appear to allow soldiers to wear beards if a medical condition requires it.