Professor Marci A. Hamilton, The Oral Argument in Holt v. Hobbs: What Does “Due Deference” Mean in the Context of RLUIPA’s Super Strict Scrutiny?, Hamilton and Griffin on Rights

 The oral argument in the Holt v. Hobbs case at the Supreme Court, which I previewed here, followed the expected faultlines. On the one hand, the legislative history and the Supreme Court’s decision in Cutter v. Wilkinson require courts to defer to prison administrators’ assessments of safety and security. On the other hand, the Religious Land Use and Institutionalized Persons Act (RLUIPA), by its terms, imposes a personalized standard of religious liberty that conceivably opens the door for the federal courts to be required to second-guess state and local prison administrators’ assessments of safety and security, prisoner-by-prisoner.

First, there was little dispute that under the Supreme Court’s free exercise doctrine of the First Amendment, the Court would defer to the arguments for prison security raised by Arkansas prison officials. Indeed, Justice Scalia noted that he would not have enacted RLUIPA, reminding the audience (as the Court has done in every free exercise case since RLUIPA’s predecessor, the Religious Freedom Restoration Act, was enacted in 1993) that RLUIPA’s standard does not reflect prior doctrine.   But there RLUIPA is.

A critical question in this case is whether RLUIPA dramatically changes the Court’s role from one of deferring to prison administrators on matters of security to applying RLUIPA prisoner-by-prisoner. As Justice Ginsburg, the author of Cutter, asked the Solicitor General’s representative, does RLUIPA mean that a list of the Court’s prior prison cases could now be reversed? His answer was that they would all need to be re-litigated to know for sure, proving once again that the RLUIPA standard is a dramatic alteration in the level of scrutiny, and certainly not a replication of prior doctrine.

Why Should the Court Decide this Case About a Half-Inch Beard when the Majority of Cases Involve Full Beards?

One major question off the top was whether the Court should have granted certiorari in this case at all, and whether the decision could provide any meaningful guidance to prison administrators across the country. Justice Scalia started off with the interesting observation that the religious belief as he understood it from the record was for Holt to have a full beard, so why were they debating whether he could have a half-inch beard? Professor Douglas Laycock, representing Holt, struggled to explain why, if his beliefs required a full beard, a half-inch was long enough. Laycock never did provide an answer that made much sense.

On the other hand, one of my Muslim students was curious why Holt needed more than a quarter-inch beard, because that would be more than adequate under Muslim beliefs. The short answer I suppose is that under RLUIPA a belief is whatever the believer says it is, short of evidence of a lack of sincerity. No one is likely to question Holt’s sincerity about being a Muslim, though, given his Yemen terrorist training, his terroristic threats against the daughters of Pres. George W. Bush, and his threats in prison to kill prison administrators in the name of “Allah.”

The most difficult question for Holt’s attorney, which is not answered in the briefs, is how the Court is supposed to decide what length beard a prison must accommodate, if at all. More than one Justice suggested that if the issue is one of length, it seems most appropriate to defer to the prison authorities, because it is a matter of degree (which needs to be determined in the context of each prison). At one point, Justice Scalia became frustrated enough with the non-responsive answers from Laycock that he suggested a “DIG,” or denial as improvidently granted, because there was no standard that the Court could provide that would be helpful.

Prison Systems Are Not Cookie-Cutter Friendly

One of the most difficult problems lurking in the courtroom was that there are 50 state prison systems and even more municipal and federal prisons, and they range from minimum security to maximum security prisons like the one where Holt needs to be incarcerated for his violent tendencies. This variety, involving each state’s sovereign power to punish and house its criminals, makes it hard to understand how there can be a single rule that would apply across all prison systems, let alone individual prisons, or all individual prisoners.

Laycock relied on a claim that there were over 40 prison systems that did not follow the Arkansas rule as evidence that the Arkansas authorities were being unreasonable, but the lawyer for the Arkansas Attorney General’s Office, David Curran, did a good job in my view of arguing that there is no other maximum security prison system (at least on the record) like Arkansas’s. It is not comparable to the comparators raised below–California and New York–where there are cell-blocks, and, it involves the prisoners leaving the prison for purposes of working in the fields under guard, which means there is tremendous movement of prisoners in large numbers, making identification of each prisoner critically important. Therefore, those other prisons’ rules cannot be translated into the Arkansas system. In addition, he noted that the examples from the United States’ and Petitioner’s briefs were based on minimum security prisons, not maximum security.

That would seem to be a meaningful difference, giving force to Arkansas’s argument that, in their state setting, beards might be used to hide contraband or to make identification difficult.

Does RLUIPA Force the Federal Courts into a Prisoner-by-Prisoner Analysis?

The argument against the Arkansas beard-length rule was that each prisoner has the right under RLUIPA to a prisoner-by-prisoner analysis that forces prison administrators to accommodate this inmate by the “least restrictive means.” So even if a beard might be used for contraband or might make identification difficult, there were less restrictive alternatives.

One could hear echoes of the Burwell v. Hobby Lobby decision, as the Justices reached far afield to concoct ways for the prison to accommodate this one believer. In Hobby Lobby, the answer was that the government could simply pay for the methods of contraception the Hobby Lobby owners (falsely) believed were abortifacients. (As it turns out, that was an illusory possibility, as there is no movement in Congress to provide the funding the Court postulated.) In this case, there was a suggestion from Justice Alito that prisons should design a special comb to be used for beard inspections, as he poked fun at the possibility that an inmate might hide a “revolver” in his beard.

There also seemed to be some sense that the prison guards should be able to rely on the identification badge each prisoner wears, rather than facial identification, but Curran pointed out that prisoners exchange shirts and badges when they are in the fields and, therefore, facial identification is critical to keep each man in his appropriate barracks so that he cannot attack those in another barracks (and, in fact, they are in different barracks because of the fact that prisoners have enemies, whether through gangs, race identity, or religion).   In short, the least-restrictive-means test once again led the Justices to follow their imaginations and presuppositions down the primrose policy path as they second-guessed those in a position to know. There were shades of Lochner v. New York.

The States’ Missed Opportunity: RLUIPA’s Glaring Federalism Defects

While the Justices threw out suggestions for lesser restrictive means, it was suggested that the problem with some of them is the cost. That is, indeed, a factor in the RLUIPA legislative history and Cutter that is supposed to be taken into account. Justice Sotomayor, however, noted that RLUIPA has a provision stating: “This chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”

There was a time before Chief Justice Roberts joined the Court when Republicans and many states hewed to a principle of small government, the sovereign power of the states, and the notion of dual sovereignty. They urged federalism in every case where it arose. But then Republican attention shifted from a focus on federalism to pandering to religious entities and social issues.

RLUIPA has glaring federalism defects, perfectly displayed in this case. Yet, the states were mum on its constitutional defects. Attorneys General want to be Governor and Governors want to be President, and they believe that religious groups deliver voting blocs, so they sat on their hands despite RLUIPA’s obvious faults. Whatever else the Court held in Boerne v. Flores, it decidedly held that the extreme standard imposed by RFRA (and duplicated in RLUIPA) on the states is beyond Congress’s power. In Cutter, Justice Thomas’s concurrence invited arguments regarding Congress’s power to impose RLUIPA on the states. Prisons are an integral part of the sovereign capacity of the state, which means that close scrutiny of Congress’s imposition on the states with RLUIPA is in order.

If there were ever a moment when a state Attorney General’s representative should have responded to a question with federalism principles, it was the one in the Holt oral argument on RLUIPA’s imposition of cost in the context of state prisons. The Supreme Court has been quite clear that the federal government cannot force the states to spend money to accomplish its ends. That’s what Printz v. United States is all about.

Today, though, Curran just let the suggestion go. Before today, the Respondent prison did not raise the issue or even deploy federalism effectively to argue for the narrowing construction of RLUIPA to support the legislative history. No state argued RLUIPA’s unconstitutionality, in all likelihood for political, rather than sound constitutional principles.

It is hard to defend the states when they won’t stand up for themselves, but as Justice O’Connor wrote in New York v. United States, simply because a state lets itself be co-opted into an unconstitutional scheme does not make it constitutional: “Where Congress exceeds its authority relative to the States, . . . the departure from the constitutional plan cannot be ratified by the ‘consent’ of state officials.”

If there were any reason that the Court should DIG this particular case, it is because the right questions are not before it, and it would appear that the Court is being forced into either setting an unreasonable standard to be applied across wide swaths of state and local prisons with very different inmates, budgets, and circumstances, or, in the alternative, imposing on the lower federal courts an avalanche of lawsuits by prisoners for individualized religious accommodation. That is an either-or question the Court should not have to answer, because it is posed by an unconstitutional statute.