A Muslim inmate's half-inch beard and the 9-0 ruling against Arkansas

Half an inch. That is about the length of a fingernail clipping, and it is the reason the State of Arkansas went all the way to the Supreme Court of the United States in a case it lost nine to nothing.

The state said a prisoner's beard of that length threatened the security of its prisons. The prisoner said his religion required it. Nine justices, who agree on almost nothing, looked at the state's argument and found that it did not hold up. If you want to know whether a principle is sound, watch what happens when the least popular person in the courtroom invokes it.

The terms

• RLUIPA is the Religious Land Use and Institutionalized Persons Act of 2000. Section 3 of the Act protects prisoners: the government may not impose a substantial burden on a prisoner's religious exercise unless it shows that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
• Substantial burden means that the government has put real pressure on a person to abandon a religious practice.
• Least restrictive means means that if a narrower rule would achieve the same goal, the government must use it.
• Deference means the courtesy courts show to the expertise of prison officials. RLUIPA does not abolish it, but deference is not abdication.

Where the statute came from

The story begins with the Court's own decision in Employment Division v. Smith in 1990, which held that neutral laws of general application need not accommodate religion, a ruling explored in Employment Division v. Smith and the Scalia rule that still splits conservatives. Congress responded with the Religious Freedom Restoration Act in 1993, signed on November 16 of that year. Then, in City of Boerne v. Flores on June 25, 1997, the Court struck down RFRA as applied to the states. The case arose when the city of Boerne, Texas, refused a permit to enlarge St. Peter Catholic Church because the building was in a historic district. Archbishop Patrick Flores of San Antonio sued under RFRA. Justice Kennedy's opinion held that Congress had exceeded its power under Section 5 of the Fourteenth Amendment: Congress may enforce the Amendment's guarantees but may not redefine them.

Congress did not give up. If it could not regulate the states generally under Section 5, it could use its other powers, the Spending Clause and the Commerce Clause, to regulate the states in two narrow settings where religion is especially vulnerable: land-use decisions and institutions that take in federal money, such as prisons. That was RLUIPA, passed in 2000 with broad bipartisan support and signed by President Clinton that September. In 2005, in Cutter v. Wilkinson, a unanimous Court upheld the prisoner provisions against the claim that they violated the Establishment Clause.

A prisoner is a person who has lost his liberty, not his conscience. The reason Congress singled out institutionalized persons is that they are wholly dependent on the state for the means to practice their faith. A man in a cell cannot go across town to another place of worship. If the warden says no, the answer is no. That dependence is the reason the law protects them.

The facts

Gregory Holt, who also went by the name Abdul Maalik Muhammad, was an inmate in the Arkansas Department of Correction. He was a Muslim, and he believed his faith required him to grow a beard. He asked to be allowed a half-inch beard, compromising from the full beard his belief called for.

The Department's grooming policy allowed inmates to wear a beard of a quarter of an inch for diagnosed dermatological problems, with no exception for religious reasons. The Department's reasoning was security. A beard, the officials said, could be used to hide contraband such as a razor blade, a weapon or drugs, and a change in facial hair could make it harder to identify an inmate who altered his appearance.

Holt filed his complaint from prison, without a lawyer, and the Supreme Court took the case. That is rare, and it suggests the justices saw something worth deciding. By the time they heard argument in October 2014, he was represented by counsel, and the United States filed a brief as a friend of the court.

The decision

On January 20, 2015, the Court ruled nine to zero for Holt. Justice Samuel Alito wrote the opinion. The reasoning followed the structure of the statute.

One: substantial burden. The Department conceded that Holt's belief was sincere and that its policy forced him to choose between following his religion and facing discipline. That is a substantial burden. The state argued that Holt could practice his religion in other ways, for example by praying and attending services, so the beard was not important enough. The Court rejected that. RLUIPA asks whether the government has burdened the believer's exercise, and it does not ask whether the believer could do without the particular practice or whether the government thinks the practice is central. The question is whether the government's policy puts the believer to a choice between his faith and a penalty.

Two: compelling interest. Alito accepted that prison security is a compelling interest. Preventing the flow of contraband and identifying inmates are real concerns. The Court did not wave them away. But RLUIPA requires the government to show that applying its policy to this person, in this case, serves the interest. That is the "to the person" requirement the Court read from the statutory text and from its decision in Gonzales v. O Centro in 2006, which concerned a religious group's use of a sacramental tea under RFRA.

Three: least restrictive means. This is where Arkansas lost. The Department's claim that a half-inch beard could hide a weapon or contraband was, the Court said, hard to credit. It noted that the Department already allowed prisoners to grow quarter-inch beards for medical reasons. If a quarter-inch beard posed no serious risk, the Department had not explained why a half-inch beard did, and the claim that the extra quarter-inch would make the difference was difficult to take seriously. The Court observed that the hair on an inmate's head is a more plausible place to hide contraband than a half-inch beard, and the Department allowed that hair. It also noted that the Department had failed to prove it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard.

The Court also noted that the Department could largely solve its identification problem by photographing all inmates without beards when first admitted. And it noted that the vast majority of states and the federal government permit inmates to grow half-inch beards. The Department had not explained why its situation was different. The absence of such evidence from the Department was fatal. The Court said that, in the absence of any explanation of why the other systems' experience was irrelevant, the state failed to show that its ban was the least restrictive means.

Last, the Court rejected the Department's reliance on the claim that courts should defer to prison officials. Deference, said Alito, has limits. RLUIPA is a command from Congress, and it requires officials to meet the standard. The Court would not accept an official's mere say-so as a substitute for evidence.

The concurrences

Justice Ginsburg, joined by Justice Sotomayor, concurred, noting that the case did not require the Court to decide whether the accommodation burdened third parties, a reference to the Hobby Lobby decision of the prior year in which the Court held that RFRA required an exemption for certain businesses from the contraception mandate. She observed that accommodating a prisoner's short beard imposed no cost on any other prisoner. Justice Sotomayor also wrote a short separate concurrence. Neither opinion changed the result or the reasoning.

The ruling is narrow. It does not say that prisons must allow every religious practice. It says that a prison must offer a real reason, applied to this person, and that a reason which falls apart on inspection is no reason.

The steelman: why prisons need discretion

Let me state the best case for Arkansas, in terms its defenders would accept.

Prisons are dangerous places, and the people who run them have to make quick decisions about safety with limited information. A contraband weapon can kill an officer or another inmate. Courts, by contrast, see a case on paper long after the event. When a judge second-guesses a warden's grooming policy, it is easy to be wrong in a way that costs lives. There is also a question of fairness: if one inmate gets a beard, another will claim a different accommodation, and the administrative burden grows. And inmates who invoke religion are not always sincere; a prison that bends for any claim of faith invites exploitation by gangs.

That argument has real force, and I do not wave it away. Prison officials do have expertise, and courts should respect it. But look at how the Court dealt with it.

The answer, in numbered points

1. The statute already accounts for it. RLUIPA does not say prisoners always win. It lets the government prevail when it shows a compelling interest and the least restrictive means. Congress knew prisons were dangerous. It passed the law anyway, with the standard it chose. Judges apply the standard.
2. Sincerity is tested, not assumed. The Court has long said that courts may inquire into whether a belief is sincerely held, though not whether it is correct. Gang-related claims can be screened at that stage. Arkansas did not contest Holt's sincerity.
3. The state's evidence defeated its own case. The Department already permitted quarter-inch beards for medical reasons and allowed hair on the head. It could not explain why a quarter-inch of additional length turned a harmless policy into a threat. A rule that makes an exception for a skin condition and none for a prayer is a rule that has priced the two differently.
4. Other prison systems tell the story. When many systems operate without the ban, the burden shifts to the one that wants it. The Department offered no reason to believe Arkansas was uniquely vulnerable.
5. A narrower rule was available. Searches, photographs and a quarter-inch of difference are all cheaper than a ban. If a less restrictive alternative exists, the statute requires it.

That is how a conservative should think about government power. It is entitled to a reason. When the state restricts a liberty, the burden of justification is on the state, and the justification must be real. A police power that can be invoked by saying the word "security" is no limit at all.

Why this is a conservative case

Here is why this ruling belongs in a conservative's account of religious liberty.

First, it enforces a statute passed by Congress. The branch that makes the law said what the standard was, and the Court applied it faithfully. That is judicial restraint in the sense that matters, fidelity to the text, and Alito is not known as a liberal.

Second, it protects the principle that religious liberty is not reserved for the faiths we find congenial. A Muslim prisoner is about as far from the typical constituency of the religious right as one can imagine. If religious liberty depends on whose God is asking, it is not liberty; it is a privilege we extend to our friends. The people who wrote the First Amendment had been through centuries in which one sect used the state against another. They wrote a rule that protected all.

Third, the same rule protects the Christian chaplain, the Jewish inmate who keeps kosher and the Catholic prisoner who wants a rosary. Prison chaplaincy is one of the oldest ministries in the Christian tradition. Holt's rule protects the freedom of everyone who ministers in those walls. For more on how the same logic worked in a different setting, see A Santeria church, a Florida city and the unanimous ruling for minority faiths, and for the Founding-era text that frames them both, Sixteen words on religion in the First Amendment, read phrase by phrase.

Fourth, the case is a model of the way the political process should work. Congress saw a gap in the protection of conscience, passed a statute, and the Court enforced it. The Court did not invent a right. It read a text. Compare that with the alternative of a federal judge simply declaring a sweeping new right, and you will see why conservatives should prefer the statutory path.

There is a moral dimension too. The Judeo-Christian tradition has always regarded the prisoner as a person with dignity. The Gospel of Matthew has the King say "I was in prison, and ye came unto me." A conservative who believes that the dignity of the individual is the foundation of a free society has no reason to think it stops at the prison gate. That does not mean prisoners should have everything they ask for. It means the state must have a reason for what it takes.

What the ruling did not do

It is worth being clear about the limits. It did not abolish prison security rules. It did not require every prison to allow every religious practice. It did not even decide that a long beard must be permitted; the question before the Court was a half-inch. And it applies to RLUIPA claims by prisoners, not to the Free Exercise Clause directly, so the standard is statutory. A different case with better evidence from the state could come out the other way, and courts have since ruled both ways on other grooming and diet questions.

In short, the Court did what judges are supposed to do. It held the government to its own burden.

The case in brief

1. Holt v. Hobbs (January 20, 2015) held nine to zero that Arkansas could not forbid an inmate from growing a half-inch beard for religious reasons.
2. The decision applied RLUIPA, passed in 2000 after City of Boerne v. Flores (1997) struck down the broader RFRA as to the states, and requires a compelling interest and the least restrictive means.
3. The state's security claims failed because it already allowed quarter-inch beards for medical reasons, other prison systems allowed beards, and searches and photographs were less restrictive options.
4. The ruling is narrow and fair to prison officials: it demands a real reason, not a ban on deference.
5. Conservatives should defend it because it enforces a statute as written, forces government to justify its restrictions, and protects the liberty of every faith, including the unpopular ones.

What you can do: read RLUIPA on Congress.gov, then ask your state's department of corrections, in writing, for its policy on religious grooming and diet requests.