Right to Wear a Beard in Prison Going to United States Supreme Court

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”


The Eighth Circuit’s opinion was typically cursory at three pages, basically deferring to prison officials, and relying on a previous Eighth Circuit case, Fegans v. Norris.  Chapter 6 of Dressing Constitutionally extensively discusses the problem with Fegans:

Michael Fegans, an inmate in Arkansas and a member of the Assemblies of Yahweh, argued that the newly enacted hair-length regulation for male inmates did not withstand the “least restrictive means” requirement of RLUIPA. The Eighth Circuit, however, was not convinced by Fegans’ arguments that the Arkansas policy was more restrictive than other prison policies and was also gendered, mandating hair above the ears and no longer than the middle of the nape of the neck in the back for male prisoners and the allowance of shoulder-length hair for female prisoners.  The court found it important that these arguments were contradicted by the testimony of prison officials, even if the officials’ statements seemed to be bare declarations.  For example, Norris, the Director of the Arkansas Department of Corrections, testified that more liberal policies would be “less effective” in the Arkansas system since “he had seen one of these policies at work in the past” and “security wasn’t nearly as good then as it is now.”  Similarly, Director Norris had something to say about gender differences: “Women are not generally as violent as men. They are not as escape prone as men. They are not as prone to give us problems with contraband as men.”  In neither case did Fegans contradict this testimony. As the dissenting judge in Fegans v. Norris correctly argued, however, Fegans did not have to refute Norris’ statements. Under RLUIPA, the prison authorities have the burden and mere assertions should not meet that burden.

Fegans v. Norris illustrates the precarious relationship between RLUIPA and the religion clauses of the First Amendment.

There’s more analysis of the Court’s grant of certiorari over at Constitutional Law Professors Blog.

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