The Right To Grow A Beard

Yesterday, SCOTUS heard oral arguments for Holt v. Hobbs, which involves a prisoner who wants to grow a beard for religious reasons. Dahlia Lithwick unpacks the case:

Gregory Holt, also known as Abdul Maalik Muhammad, is an inmate serving a life sentence in a maximum security prison in Arkansas after being convicted of cutting his girlfriend’s throat and stabbing her in the chest. He is a devout Muslim who, under the dictates of his religion as he understands them, is required to grow a beard. Arkansas’ prison policy states that prisoners may not have beards unless a doctor has diagnosed a dermatological problem, in which case the beard can only be one-quarter of an inch long. …

The truth is, as Justice Stephen Breyer points out, [Arkansas Deputy Attorney General David] Curran is having a hard time providing any examples of dangerous things dropping out of half-inch beards. He just wants us to know that they might be there. Dangerously. Hidden among the stubble.

Alito had the question of the day:

Why can’t the prison just give the inmate a comb, and say comb your beard, and if there’s a SIM card in there or a tiny revolver, it’ll fall out?

Damon Root sees no problem with a prisoner having a beard:

In this case, the law is squarely on Holt’s side. As his lawyers at the Becket Fund for Religious Liberty observe in their main brief, “forty-four other state and federal prisons with the same security interests allow the beards that Arkansas forbids.” In other words, while prison security is undoubtedly a “compelling government interest,” the no-beard policy is far from the “least restrictive means” of achieving it.

For its part, Arkansas maintains that its correctional officers are entitled to broad deference from the courts. But that argument not only fails to satisfy the strict requirements of the [the Religious Land Use and Institutionalized Persons Act (RLUIPA)], it also runs counter to an important 19th century precedent set by Justice Stephen Field, one of the Supreme Court’s first great conservative jurists. In the 1879 Circuit Court case of Ah Kow v. Nunan, Justice Field confronted a San Francisco ordinance which required all male prisoners in the county jail to have their hair “cut or clipped to an uniform length of one inch from the scalp.” City officials claimed it was a public health regulation, but in fact the law’s real purpose was to humiliate male Chinese immigrants, who commonly wore their hair in long braided ponytails known as a queues. This “queue ordinance” (as it was known throughout the city) was just one of the many racist and xenophobic regulations passed by California officials in response to the arrival of Chinese immigrants.

Noah Feldman ponders the beard-friendliness of the various justices:

Unlike his older colleague Justice Antonin Scalia, Justice Samuel Alito has never worn a beard on the bench. But to Alito, the court’s emerging leader on religious liberty exemptions, beards are ground zero.

Feldman also provides context for Alito’s likely support for the hirsute:

[T]he fact that the Department of Corrections makes an exception for men who can’t shave must be evidence that it hasn’t adopted the least restrictive means of maintaining safety by banning beards. If a few people can have short beards, why can’t all?

Justice Alito actually dreamed up this logic in a 1999 case, Fraternal Order of Police v. City of Newark. The city banned not inmates but police officers from wearing beards — it made an exception, however, for officers suffering from folliculitis. Supreme Court precedent ordinarily denies constitutional exemptions when there is a neutral, generally applicable law in place. (Justice Scalia set that precedent, Employment Division v. Smith.) In a subversively brilliant reinterpretation of the Smith precedent, then-Judge Alito said that the exemption must be granted because the city had created a system of individual exemptions. Because it allowed medical beards, the city had to allow religious ones.

Previous Dish on the beard case here.