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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“Dressed Up and Ready To Read”

Kim Brooks, in her review of Dressing Constitutionally, over at Jotwell:

One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.

Dean Brooks (and her hair) pictured below:


Ninth Circuit Upholds American Flag Clothing Ban

358px-Betsy_Ross_sewingIt was a partial ban, to be sure: some students on a particular day.

In its opinion in Dariano v. Morgan Hill Unified School District, the Ninth Circuit rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.  Affirming the district judge, the panel applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) to the First Amendment claims, distinguishing Tinker.

While school dress codes and their application can raise grave constitutional concerns, the context as the court explains it here seems to warrant the tailored of school officials, American flag or not.

More of my analysis of the opinion over at the Constitutional Law Professors here.

And lots more about school dress codes in Dressing Constitutionally.

An Anti-Blanket Ordinance


The Pensacola anti-camping ordinance is being called an anti-blanket ordinance that operates to prevent the homeless from using a blanket or other means to keep themselves warm.

While blankets may not be expressive and thus within the First Amendment – – – as I analyze over at the Constitutional Law Professors Blog here – – – there should be equality concerns.  Or, as the petition directed against the ordinance contends, humanity concerns.

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Khmer-American Artist Sewing in Protest

An important performance piece by Kate Eng:



As Kate Eng explains:

“</3 is not a campaign for pity or charity.  It is an act of solidarity with the women who labor under the boot of multinational corporations and their collapsing industrial machines, women who literally create immense value with their own callused hands yet remain in poverty.

It is a message to consumer culture: behind every stitch is a hand, a face, a person. It is a critique of working class commodification and the brand industrial complex. I am not here to list the names of every corporation engaged in exploitation in Cambodia- though I will. I am here to meet you, the consumer, and to be consumed by you and to rest in the pit of your stomach. To be explicit, to haunt you while you shop.”

Self-Defense Claim Based on Clothes of Victim

The killer said he feared the victim

was armed “because his pants were falling down” and his hands were in his hoodie pockets.

Hoodie_manReporters Jeff Weiner and Arelis R. Hernández in the Orlando Sentinel describe a killing and claim of self-defense in Florida today, raising similarities to the controversial acquittal of George Zimmerman for the killing of Trayvon Martin using Florida’s “stand your ground” self defense standard.

The victim’s hoodie or sagging pants should not be considered as evidence of violence.  We should not be “profiling clothes.”   This includes hoodies and this includes “saggy pants.”

There’s more discussion of the legal consequences of sagging pants, hoodies, “thug wear,” and government’s attempt to regulate what we wear by indirect and direct means in Dressing Constitutionally.

But this is certain:

No one deserves to die for what he or she is wearing.  And the law should never suggest otherwise.

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Modest Dressing at the Frick Collection

Apropos of discussions about “hijab” as modest dressing including head covering for women, Vermeer’s famous painting “Officer and Laughing Girl,”


now on exhibit at the Frick bears an interesting description: “A gentle radiance illuminates an officer and a modestly dressed young woman engaged in the pleasantries of courtship.”

Is it the headcovering that makes the woman in the 1657 Dutch painting modestly dressed?


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Hijab Hysteria

From my piece over at Women’s Review of Books:

The legal policing women’s headscarves is rooted in a mélange of sexism, xenophobia, religious bias, and racism. Unlike the niqab (veil), hijab as sartorially expressed by the headscarf does not obscure the face. While the niqab can raise concerns about identification and anonymity, which may be rational in some situations, such as a trial in which the identity of a person is a central issue, the headscarf evokes anxieties of a less logical sort.


Read more here.

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