The Case of the 1⁄2-Inch Beard: Religious Rights of the Incarcerated

Incarcerated PeopleBy Shobana Subramanian.

The Supreme Court will soon determine if Muslim prisoners have the right to grow a ½-inch beard in accordance with their religious beliefs. An Arkansas prisoner, Gregory Holt, has filed suit against prison officials, claiming the prison-wide ban on beards violates his Islamic faith. Facial hair bans have been the subject of recent controversy—last January, the Pentagon officially relaxed its grooming regulations in an effort to be more inclusive of Muslim and Sikh servicemen. But prisoners, unlike soldiers, forfeit many of their Constitutional rights, the notable exceptions being the protection against cruel and unusual punishment and the right to due process. Historically, the courts have taken a hands-off approach to prison regulations, surrendering discretion to prison officials employed by either the federal government or the states.

But in 2000, Congress took an interest in protecting the religious rights of prisoners who otherwise would not be protected under the First Amendment’s freedom of religion clause. When the Religious Freedom and Restoration Act (RFRA) of 1993 was ruled unconstitutional as applied to the states (Boerne v. Flores, 1997), Congress responded by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA). Like the RFRA, the RLUIPA elevates the religious freedom disputes of prisoners to strict scrutiny; this means the government must show that the restriction placed upon the prisoners satisfies a compelling interest while being minimally restrictive.

Prisons have many security measures, which may or may not hinder a prisoner’s religious practices. Because Holt is a convicted criminal, his beard could pose security risks; according to prison officials, prisoners can hide small objects such as razor blades and SIM cards in beards even as short as the ½-inch requested by the petitioner.

There is no denying that Holt is a dangerous man. He was convicted of the brutal murder of his ex-girlfriend and has regularly made threats of violence against others both prior to and since the start of his life sentence. Prisoners have been known to possess contraband such as razors and knives, and those who work in prisons—and the prisoners themselves—are in constant danger of violent assault. The petitioner sincerely believes that his religion commands him to grow a beard. That alone is enough for his case to be judged under the RLUIPA.

Whether or not the prison officials have a compelling interest in prohibiting Holt from keeping a beard can hardly be questioned. The safety of guards, officials, and other prisoners is of maximum importance. Whether forcing Holt to shave is the least restrictive means of achieving this interest is the real issue. Prison officials argue that beards could hinder the prisoner identification process; Holt counters by suggesting that a photograph could be taken of each prisoner with and without a beard. In addition, the respondents believe guards could injure themselves inspecting the prisoners’ beards, but there is no reason the guards themselves have to touch the beards—the prisoners could be made to run their own fingers through their beards, exposing any contraband.

Most compelling is the fact that the prison already offers exemptions to prisoners with medical issues that require them to maintain facial hair. There is no reason Holt could not be offered a similar exemption. Despite Holt’s reputation, it is unlikely that an exemption for religious reasons would significantly threaten the safety of the prison when so many are already granted exemptions. It is equally unlikely that many prisoners will suddenly want to grow beards when there are so many other places of hiding contraband, as evidenced by the fact that the anti-beard policy has done nothing to improve the safety of prisons.

Whether we like it or not, the RLUIPA forbids us from restricting the religious practices of prisoners. The prison contends that because they are accommodating of Holt’s other religious requests (e.g. a prayer rug in his cell, religious books, a pork-free diet, etc.), forcing Holt to shave does not significantly burden his exercise of religion. However, the law does not prohibit a significant burden—it prohibits any burden, unless justified under strict scrutiny. Holt argues that by the prison’s logic, should they let him keep a beard, they would be allowed to feed him pork every day. It is not up to the prison officials or the courts to determine how important a particular religious tenet is compared to others.

The case of Gregory Holt is the ultimate test of emotional bias. The respondent’s case brief is full of references to jihad and Holt’s violent past. He is given a character in a case that is completely irrelevant to character. Yes, Holt is a murderer who perhaps does not deserve the right to religion. But that is a question for lawmakers. The fact is, as far as the RLUIPA is concerned, it does not matter whether Holt is a murder, a terrorist, or a shoplifter—he is simply a prisoner who has been granted certain rights.

That this case is statutory rather than constitutional leaves little room for political bias shrouded in legal vagaries. To deny Holt his rights when his case clearly passes strict scrutiny would reflect poorly on a Court that, in the recent case Burwell v. Hobby Lobby, expanded on the religious rights of corporations because of the exact same requirement of strict scrutiny in the RFRA. While the Court could once again hide behind legislative history and intent and declare that, because Congress has traditionally left discretion to prison officials, the language of the RLUIPA should be softened, that would be unwise. Treating corporations one way and prisoners another without sound statutory backing would require the Court to cross into legislative territory, where they are neither welcomed nor allowed.

When considering the implications of Hobby Lobby and similar cases, we must ask ourselves how far we are willing to go in the quest to broaden civil rights. We are a society of laws, and it is reasonable and expected for criminals and felons to not have the same rights and privileges enjoyed by law-abiding citizens. For example, felons in every state except Maine and Vermont cannot vote while in prison. In 31 states, a felony record incurs a lifetime ban on jury service. As a result, 30% of African Americans cannot serve on a jury, which is one reason why many black defendants are still judged by all-white juries.

However, we must acknowledge that jury service, unlike religion, is not a fundamental right (it remains to be seen if there will ever be legislation demanding racially balanced juries). And as someone who favors a textually rigorous interpretation of constitutional and statutory law, I would rather let Gregory Holt grow a ½-inch beard than risk rendering the RLUIPA meaningless. After all, it cannot hurt society to treat convicts with dignity and justice, even if they do not deserve it.


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