Photo credit: Wikimedia Commons
Authored by Adil Haq, Muslim Advocates Staff Attorney
This morning I attended oral arguments in Holt v. Hobbs, a case before the Supreme Court involving a Muslim prisoner named Abdul Maalik Muhammad (formerly Gregory Holt), who wants to grow a one-half inch beard in keeping with his religious beliefs. Muslim Advocates filed an amicus brief in support of Mr. Holt’s position.
The Arkansas Department of Corrections, the system under which Mr. Holt is incarcerated, maintains a strict policy allowing only those with a dermatological condition to grow beards. And even in those cases, prisoners’ beards are limited to one-quarter of an inch.
While it may appear the case involves a very specific question about beard length in one state prison system, at issue is the Court’s interpretation of a major federal statute—the Religious Land Use and Institutionalized Persons Act (RLUIPA). Under the law, Arkansas cannot place a substantial burden on Mr. Holt’s religious exercise unless it furthers a compelling government interest and is also the least restrictive means of doing so. The Court, in other words, has to consider what the purpose of the state’s beard policy is and whether there is another way of accomplishing that purpose while still allowing Mr. Holt to grow a beard.
Below are some of my observations from the courtroom:
Douglas Laycock, a renowned RLUIPA expert and professor at the University of Virginia Law School, argued on Mr. Holt’s behalf. There was a somewhat frustrating opening question from Justice Scalia regarding Mr. Holt’s offer to compromise on beard length: as detailed in the record in proceedings below, Mr. Holt, who would prefer to grow a full beard, said he would be satisfied if he were allowed to grow a one-half inch beard. Justice Scalia seemed to be questioning Mr. Holt’s religious sincerity when he suggested that growing a one-half inch beard would violate Islamic scripture. Professor Laycock quickly parried, explaining to Justice Scalia that Mr. Holt had arrived at the compromise after rigorous study of hadith. Fortunately, this line of questioning was quickly abandoned.
I was also struck by the fact that both conservative justices (Justice Scalia and Chief Justice Roberts) and liberal ones (Justice Sotomayor and Justice Kagan) seemed concerned about where Professor Laycock would have the Court draw the line. Justice Scalia even suggested the Court would have to deal with cases “half inch by half inch.”
Later, there was some interesting back and forth between the justices and Professor Laycock about how much deference should be given to the state when it enacts policies like the one at issue. Professor Laycock had argued that here the state was seeking “absolute deference.”
Arguing the state’s position was Arkansas Deputy Attorney General Gregory Curran. It was immediately clear that he knew he was dealing with a very poor record from below. Mr. Curran quickly abandoned one of the state’s two main reasons (or compelling state interests) for its policy: that it is necessary for security purposes. He instead focused on the other reason, that the policy is necessary in order to identify prisoners. He argued that the Arkansas prison system is unique. The particular facility where Mr. Holt is being held is a barracks-style prison that allows for greater prisoner movement than other maximum security facilities. According to Mr. Curran, a prisoner with a one-half inch beard would have a unique advantage in such a system because he could, conceivably, shave and conceal his identity. Because no other state has a policy like the one Arkansas has, Mr. Curran had to come up with some kind of compelling interest for the policy. Justice Alito, however, pounced on this point, saying that such a prisoner would have to also commandeer another inmate’s ID in order to truly conceal his identity–and that assumes the other prisoner is actually similar looking.
Curiously, Mr. Curran tried to introduce new evidence on appeal. For instance, he argued that the state’s medical exception for beards was not properly described in the record and does not actually provide for a one-quarter inch beard as the policy explicitly states. I was surprised to see the justices not push him on this point further.
For me the highlight of the day—and this goes back to the security interest the state offered—was when Justice Alito asked Mr. Curran why prison guards cannot just use combs on the inmates’ beard: “If there’s anything in there, if there’s a SIM card in there or a revolver or anything else you think can be hidden in a half-inch beard, a tiny revolver, it’ll fall out,” he said. Everyone in the courtroom laughed, recognizing the absurdity of the notion. Mr. Curran, to my shock, totally accepted this point, even going so far as to say he might have a different view than his client of Justice Alito’s hypothetical example.
In the end, only perhaps Justice Breyer seemed to be tipping his hand. His questioning suggested a deep skepticism of the state’s position. Justices Kagan and Sotomayor questioned both sides vigorously, but if I were to wager, I think the majority will find in favor of Mr. Holt’s position.
And I would not be surprised to see Justice Alito join them.
Click here to read the amicus brief Muslim Advocates filed in the case.