Justice Samuel Alito, joined by some of his colleagues, had little patience on Tuesday for the arguments of a lawyer defending the Arkansas Department of Corrections “no beard” policy. It allows a one-fourth inch beard only for those inmates with dermatological problems.
The policy is being challenged by an inmate, Gregory Holt, who argues that his Muslim faith requires him to grow a beard. He says he would be happy with half-inch beard. Holt says the prison policy violates his rights under a federal law specifically designed to protect religious exercise for prisoners.
In court, David A. Curran, Arkansas Deputy Attorney General, told the justices that they should give deference to the prison’s security objectives. He said a half-inch beard could be used by an inmate to “alter his appearance, thwart identification, and conceal contraband.”
The case pits the security concerns of the prison against the Religious Land Use and Institutionalized Persons Act (RLUIPA) a federal law that says the government can't impose a substantial burden on the religious exercise of a prisoner unless it demonstrates that it has a compelling interest and the burden is the least restrictive means of furthering that interest.
A significant problem for Arkansas is that over 40 other states and federal prisons allow a one-half inch beard.
Curran told the justices that the prison in question has a “unique environment”—different from many other prisons--because its design includes barracks housing, and prisoners are sometimes escorted beyond the prison fence.
Curran said if an identification mistake is made upon a prisoner’s return, “an inmate could get into the barracks where he is not supposed to be and an assault could occur.”
Chief Justice John Roberts asked: “But you have no example of that ever happening?” Curran agreed there was no record.
And then Alito began to gather steam. He asked why there is no identification problem associated with a one-fourth inch beard for those with medical conditions, yet a concern for those with a one-half inch beard.
And he also wanted to know why there was a concern for someone with a beard, but not the same concern for someone with longish hair on top of his head.
But Alito saved most of his disdain for Curran’s argument that the policy was necessary to stop prisoners from concealing contraband.
“Why can’t the prison just give the inmate a comb?” he asked. He suggested that if there were a concern that something was being hidden in a beard, prison officials could say “comb your beard.” And then--dripping with sarcasm--he added that if there’s anything in the beard such as a--“tiny revolver”--“it’ll fall out.”
Curran pushed back but Alito’s blows were tough to overcome.
Holt’s lawyer, Douglas Laycock, told the justices that what Arkansas Department of Corrections officials are seeking is “absolute deference to anything they say just because they say it.”
The government argued in support of Holt. Anthony A. Yang, Assistant to the Solicitor General, pointed out that while security interest in the prisons are compelling, Arkansas had “failed its burden of proving that denying a one-half inch religious beard would be the least restrictive means to further a compelling interest.”
Gregory M. Lipper, senior litigation counsel for the American United for Separation of Church and State, filed a brief in support of Holt. “I expect the court to rule that this prisoner is entitled to a religious accommodation, but to adopt a standard to give prisons some flexibility and ensure that religion doesn’t become a trump card that overrides all other interests," he said.
The issue comes on the heels of last term’s Hobby Lobby case. In that case, a closely divided court ruled that two for-profit corporations with sincerely held religious beliefs did not have to provide a full range of contraceptives at no cost to their employees pursuant to the Affordable Care Act.