The Prisoner's Dilemma

An Arkansas Inmate's Case Tests The Limits Of A Federal Religious Liberty Law

In a hand-written petition to the U.S. Supreme Court, Gregory Holt, an inmate in an Arkansas prison, made the best case he could for being allowed to keep a beard that correctional officials had ordered him to shave off.

Holt must have been persuasive. The high court, which hears less than 2 percent of the cases referred to it, has agreed to give him his day in court.

To the casual observer, Holt’s request might seem frivolous. He’s serving a life sentence at Arkansas’ Varner SuperMax facility for domestic violence and burglary; there are obvious security needs, and many would argue that certain lifestyle restrictions are a deserved consequence of criminal behavior.

But the issue is more complicated than it initially seems. A beard isn’t merely a fashion statement to Holt, who also goes by the name Abdul Malik Muhammed. It’s a tenet of his faith – and other prisons allow similar beards with no problems.

“Petitioner is a devout, Salafi Muslim that follows the Sunnah of the Prophet Muhammed and the Salaf of the righteous predecessors,” Holt explained in his petition. “As part of this belief and practice, Petitioner believes that every Muslim male must wear a lihyat (beard) by ‘clipping the mustaches short and leaving the beard as it is.’”

In other words, according to Holt’s interpretation of the Quran and the hadiths – recorded sayings of the Prophet Mohammed that are considered scripture – he must wear a beard.

The conundrum: In Arkansas, prisoners are only permitted to grow beards of less than one-quarter inch if they have a doctor-certified dermatological condition. Holt asked for an exemption to the rule, citing his religious beliefs as justification. Specifically, he wanted to grow a half-inch long beard.

Prison officials denied the request, citing hygiene and security concerns. Holt rejected that argument and instead claimed that their refusal violated his rights under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

“A one-half inch long beard would not be a security threat when inmates are allowed to grow large afros and thick head hair,” Holt wrote. “In the end, it is not about security concerns but rather about controlling inmates unnecessarily by interfering with their religious practices.”

That claim hasn’t fared well in the lower courts. The 8th U.S. Circuit Court of Appeals ruled in favor of the prison and ordered Holt to shave his beard. He appealed. Douglas Laycock, a noted First Amendment attorney at the University of Virginia, is assisting him with his suit.

The justices will hear the Holt v. Hobbs case during the court’s 2014-15 term, which means that a decision is likely a year away. In the meantime, legal experts are debating the validity of Holt’s claim, and of RLUIPA itself, which has been the subject of controversy since it passed in 2000.

RLUIPA has a somewhat complicated history. When first proposed in 1998, it was framed as a reaction to the Supreme Court’s decision in Boerne v. Flores, which struck down some aspects of another law, the federal Religious Freedom Restoration Act (RFRA). According to the court, RFRA, as originally written, violated the Fourteenth Amendment by infringing on states’ rights to enact their own local ordinances. It now applies only to the federal government.

Some civil liberties groups and religious bodies feared that the court’s ruling left religious freedom in a precarious position. A coalition of groups, including Americans United, supported a legislative response that could appropriately address incidents of anti-religious bias.

The result was RLUIPA. RLUIPA is narrower than RFRA, and applies strictly to zoning laws and prisoners’ rights. Since the Supreme Court struck RFRA down as an unconstitutional overreach of the federal government’s powers, RLUIPA had to balance that restriction with the need for a universal legal standard that could effectively safeguard religious freedom.

During debate on the bill, its supporters argued that arbitrary restrictions on houses of worship, and especially on the religious freedom rights of prisoners, created a real need for a solution. In testimony presented to Congress, Mark Chopko, formerly the general counsel to the U.S. Conference of Catholic Bishops, reported that a prison had intercepted communications that took place while inmates were confessing to priests. Chopko argued that without legal protection, such interference would likely happen again and if it did, it would unconstitutionally restrain Catholic prisoners’ rights to religious expression.

Further testimony revealed case after case of potentially unconstitutional restrictions on prisoners. Restrictions on diet, grooming and appearance quickly emerged as common RLUIPA violations. A Michigan prison refused to provide Jewish prisoners with matzo – unleavened bread – for Passover, even though it had been donated by an outside organization. In New York, prisons that had previously allowed inmates to grow beards for religious reasons revoked permission as soon the Supreme Court handed down its verdict in Boerne.

Persuaded by the need for some additional religious liberty protection, Congress overwhelmingly voted to pass RLUIPA. And claims made after its passage do appear to demonstrate that there’s a case to be made for a universal standard, particularly where minority religions are concerned.

Many of these claims have come from prisoners belonging to minority religions, which is little surprise: The tenets of these faiths typically aren’t as familiar to prison administrators. The cases provide some important context to Holt’s ongoing lawsuit, and insight into the Supreme Court’s decision to take his case.

Holt wouldn’t be the first Muslim prisoner to have his religious expression restricted by prison officials.

In Orange County, Calif., v. Sou­hair Khatib, a Muslim woman sued the Orange County Sheriff’s Office for violating her rights under RLUIPA after police forced her to remove her head covering, called a hijab, in a holding cell. The 9th U.S. Circuit Court of Appeals eventually ruled in her favor, finding that the sheriff’s office had indeed violated her right to religious expression.

In Salahuddin v. Goord, the 2nd U.S. Circuit Court of Appeals found that a New York prison had violated RLUIPA by restricting a Muslim prisoner’s access to religious services and religious meals. Similar problems arose in Hudson v. Dennehy. A district court decided in favor of Muslim inmates who claimed they’d been refused access to religious meals. And in Williams v. Bitner, the 3rd Circuit ruled that Muslim inmates had a right to refuse to handle pork without the threat of punishment.

These cases may work in Holt’s favor. Other states do permit Muslim prisoners to wear short beards, and the accommodation didn’t exactly unleash anarchy within prison walls. As Laycock noted in a brief authored on Holt’s behalf, “In fact, thirty-nine states, the United States, and the District of Columbia permit beards either for all prisoners or for prisoners with religious motivation.…Of the remaining eleven states, Idaho and Mississippi allow half-inch beards and Indiana allows 1-1/2 inch beards. Texas recently had its no-beard rules invalidated.”

But in a political climate dominated by contentious debate about the true nature of religious liberty, the fact that these accommodations are granted at all raises questions about how RLUIPA functions.

Americans United’s legal team will file a brief supporting Holt’s RLUIPA claim but with important caveats. 

“We thought this claim by the prisoner is a quintessential RLUIPA claim,” said Ayesha Khan, AU’s legal director. “It’s why the statute was enacted. It’s a classic example of why the accommodation should be granted.”

The reason is that Holt’s beard doesn’t impact anyone else.

“There’s no negative impact on identifiable third parties,” Khan said. She sees the case as an opportunity to distinguish these type of individualistic claims from religious liberty assertions raised in other recent cases – like Hobby Lobby’s argument for an exemption from the Affordable Care Act’s so-called contraception mandate. Hobby Lobby believes it merits an exemption due to RFRA, not RLUIPA, but both laws require anyone making a claim to prove that independent third parties won’t be harmed by the religious exercise in question.

In Hobby Lobby’s case, employees would be harmed by a ruling granting the chain’s devout owners the right to refuse to provide access to certain contraceptives. But Holt’s case poses no such dilemma.

“Holt’s claim doesn’t arise in the commercial sphere and doesn’t ask anyone to give up anything to which they’re already entitled,” Khan explained.

Should Holt win his case, his non-religious peers at Varner SuperMax won’t be entitled to grow their own beards unless they have a dermatological condition. There’s no equivalent secular philosophy that requires the growth of a beard.

“We think the Constitution does treat religion differently,” Khan said. “The government can’t establish any religion, but it can establish a secular point of view.” Free exercise is protected, she explained, which means that there are certain accommodations that must be made for religious expression.

This is the balance struck by the First Amendment. The government is charged with the simultaneous responsibility of remaining religiously neutral while protecting the right to free religious expression. Despite its flaws – or perhaps because of them – RLUIPA illustrates the tension at the heart of the religious liberty debate in America.

Unfortunately, the Religious Right tends to exploit that tension, using RLUIPA (and its predecessor, RFRA) as tools to advance a theocratic agenda. That’s completely contrary to the intended purposes of both statutes.

“RLUIPA was never intended to be a way to restrict the rights of others,” said Barry W. Lynn, executive director of Americans United. “The case of Greg­ory Holt illustrates how the statute really ought to be applied: to protect religious minorities whose beliefs might not be well understood by others.”

He added, “Regardless of whatever crimes Holt may have committed, he’s still entitled to religious liberty behind bars. His request harms no one, and therefore, it should be granted by the Supreme Court.”