Alex J. Luchenitser, A Unanimous Church-State Decision from the Supreme Court?, American Constitution Society for Law and Policy

by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State

The Supreme Court this week heard arguments in Holt v. Hobbs, a challenge to a prison’s refusal to let an inmate grow a half-inch beard to comply with his Islamic religious beliefs. Most church-state cases that reach the Court are deeply divisive. In Holt, on the other hand, there appears to be a broad consensus among religious-freedom advocacy groups, as well as the justices themselves, that the prisoner should prevail.

Groups that are typically at odds in church-state cases, such as my organization Americans United for Separation of Church and State and the Becket Fund for Religious Liberty, supported the prisoner’s claims. And from the questions posed by the justices, it appears that the prisoner will win unanimously or nearly so.

The prisoner, Gregory Holt (who now goes by the name Abdul Maalik Muhammad), brought his claim under the Religious Land Use and Institutionalized Persons Act, which is known by the difficult-to-pronounce acronym RLUIPA. RLUIPA prohibits a prison from substantially burdening an inmate’s religious exercise unless the prison is furthering a compelling governmental interest through the least restrictive means of doing so.

More than forty states, as well as the federal prison system, allow beards of the length that inmate Holt requested. Yet the defendant Arkansas prison system advanced two justifications for its denial of the beard: First, Arkansas argued, prisoners could hide contraband even in short beards.  Second, according to Arkansas, allowing prisoners to have facial hair could make it difficult to identify inmates within the prison.

Justices who often hold diametrically opposing views on church-state and other hot-button issues were united in being deeply skeptical of these assertions.

Justices Ruth Bader Ginsburg and Samuel A. Alito noted that it would be much easier to hide objects in a head of hair, pointing out that Arkansas prisons allow inmates to have voluminous locks. Justice Alito also pointed out that even if it were possible to hide contraband in a half-inch beard, prison guards could easily expose such contraband by simply making the inmates comb their beards so that anything hidden falls out.

As for the identification justification, asked Justice Antonin Scalia, why not simply take photos of prisoners with their beards? The prison system’s attorney contended that a prisoner could shave his beard while out of his barracks and then try to switch places with another prisoner to enter a different barracks. Justice Alito was understandably unconvinced by this fanciful scenario, given that prison guards are required to check inmates’ identification badges before letting them back into a barracks.

Justices John G. Roberts and Stephen G. Breyer both asked whether the Arkansas prison system could actually give any examples of beards resulting in the contraband or identification issues the prison officials raised. The prison system’s lawyer could not do so.

Yet despite apparent agreement on what the outcome should be, the justices struggled about what standard should be applied to get there. Justices asked questions about the extent to which deference should be applied to the government’s assertions in a RLUIPA case, as well as the extent to which the government may be forced to spend money or resources to accommodate a religious objection.

The answers to these questions may have an impact that extends far beyond the prison context.  The test applied to prisoner claims under RLUIPA is virtually identical to the test applied to claims for religious exemptions under the Religious Freedom Restoration Act (“RFRA”).

RFRA is the statute on which the Supreme Court recently relied in Burwell v. Hobby Lobby Stores to hold that the government cannot require businesses to include coverage for contraceptives in health-insurance plans if the businesses’ owners have a religious objection to such coverage. Hobby Lobby may trigger a wave of efforts by employers and others to obtain religious exemptions from a wide variety of federal laws.

Anti-discrimination laws are likely to be a major target of such attacks. And employers are continuing to rely on RFRA in attempts to block the federal government’s efforts to provide contraceptive coverage to women, even though the Obama administration has bent over backwards to accommodate the objections of religious employers.

What the Court says in inmate Holt’s seemingly easy RLUIPA case could be quite important to how such future contentious RFRA cases are decided. Justices who are concerned about misuse of RFRA to elevate the concerns of religious employers or other religious objectors over the religious and personal freedoms of employees or other individuals should therefore be very careful about what they write or join in Holt.

The justices should not make it overly difficult for the government to establish a compelling interest, or to show that it is acting through means that are least restrictive. The justices should also take care that any test they announce requires due consideration for the impact of a religious accommodation on others, so that Holt doesn’t pave the way for RFRA to be used by religious objectors to burden the rights and freedoms of persons who do not share the same religious beliefs.

Americans United for Separation of Church and State filed an amicus brief in the Supreme Court in support of inmate Holt’s claims.