This post follows Sam’s excellent comments on the Department of Justice’s robust enforcement of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) under the Obama Administration. I share Sam’s view that the charge that President Obama is “waging a war on religion” is tough to square with his administration’s significant RLUIPA enforcement efforts. As religious liberty in the penal context is of particular interest to me, I wanted to add a few items to the conversation that Sam started.
Before doing so, a little background: RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . even if the burden results from a rule of general applicability,” unless the burden (1) “is in furtherance of a compelling governmental interest”; and (2) “is the least restrictive means of furthering that compelling governmental interest.” RLUIPA — passed after the Supreme Court’s decision invalidating the Religious Freedom Restoration Act as it applied to States — attempts to restore heightened protection for the religious freedom of incarcerated individuals.
The generally applicable prison rules that I’d like to focus on are inmate grooming standards, which, broadly speaking, restrict the ability of prisoners to grow their hair or maintain facial hair. Georgia, for example, requires that inmates’ hair must be no longer than three inches in length; mustaches that “extend beyond the edge of the mouth” are prohibited; and beards and goatees are prohibited. Prison officials generally offer four basic justifications for these restrictive grooming policies: they prevent inmates from drastically altering their appearance and thus limit inmates’ ability to evade easy identification in the event of an escape or major incident; they are necessary for security purposes in that they make it more difficult for inmates to hide contraband; they ensure good hygiene; and they promote order and discipline.
These rules may conflict, however, with the religious requirements of inmates, such as Muslims, Sikhs, Native Americans, and Rastafarians, who are forbidden from cutting their hair. The question, given this “substantial burden” on these inmates’ religious exercise, is whether restrictive inmate grooming policies can survive strict scrutiny. In an article forthcoming in the University of Miami Law Review, I highlight three questions that are relevant for courts asked to resolve this question in particular cases:
First, in defending the restrictive grooming policies, can prison officials rely on generalized statements that the policies further compelling state interests in say identification or security, or, by contrast, must the prison officials put forth particularlized evidence that the specific inmates challenging the rules have given rise to the concerns (e.g., security) that would justify restrictions on their religious freedom? The Department of Justice seems to have taken the latter view, arguing in one case for example that the prison officials have “the burden of showing that security, their asserted compelling interest, is actually furthered by banning . . . specific Plaintiffs from having long hair.” I agree with the Department’s take, as such case-by-case adjudication is more consistent with RLUIPA’s protections than allowing prisons to avoid meaningful judicial scrutiny by merely reciting their general penological interests. Second, what is the relevance of medical exemptions to generally-applicable grooming policies under RLUIPA? Some would say there is no relationship between the two. The Eleventh Circuit, for example, stated that, “the existence of the medical exemption does not in any way defeat [the state’s] claimed interests in support of the shaving and hair length regulations.” It seems to me that granting exemptions from grooming standards to inmates with medical issues undermines the argument that the policies must remain in effect as to those with conflicting religious requirements. Third, what is the relevance of the fact that most States and the federal Bureau of Prisons do not have restrictive grooming policies, despite possessing the same underlying penological interests? My fantastic research assistants have discovered that thirty-nine States and the federal Bureau of Prisons do not have restrictive inmate grooming policies on the books, leaving only eleven, including Georgia, that do. The scoreboard is in flux, trending towards the thirty-nine. In one of the cases that Sam links to, Basra v. Cate, the Department of Justice challenged California’s restrictive grooming policies, leading California to settle the case — it will allow inmates to maintain beards and long hair for religious reasons. California houses approximately 144,000 prisoners; the federal Bureau of Prisons about 208,000. It seems to me that States with restrictive inmate grooming standards must explain why it is necessary for them to maintain such requirements, even though most jurisdictions are able to satisfy the same penological interests without resorting to restrictions on inmates’ religious exercise.
At the end of the day, I call for a framework in which restrictive inmate grooming policies may not be imposed on inmates with religious beliefs that require followers to wear beards or have long hair, unless the prison officials offer evidence of actual or threatened risks to compelling penological interests as to the specific plaintiffs or inmates in question. The Fourth, Fifth, and Eleventh circuits, at present, have upheld restrictive grooming codes. (Justice O’Connor is sitting by designation in a pending Fourth Circuit case, Couch v. Jabe, that involves a RLUIPA challenge to Virginia’s restrictive inmate grooming policies; the Department of Justice has intervened in a pending Fifth Circuit case; and my article focuses on the Eleventh Circuit.) The Department deserves a lot of credit for dedicating itself to this area of law, which does not get a lot of press or attention, and for seeking to expand the religious rights of inmates to their statutory maximum.
Posted by Dawinder “Dave” S. Sidhu on May 18, 2012 at 06:36 AM
Comments
Margo, many thanks for bringing the Couch decision to my attention — I had listened to the oral argument in the case, but, perhaps in the fog of grading, did not notice that the ruling came down last week.
Posted by: Dawinder “Dave” S. Sidhu | May 18, 2012 2:27:18 PM
Very interesting. Couch v. Jabe, the Fourth Circuit case you mention, came down a week ago — http://pacer.ca4.uscourts.gov/opinion.pdf/116560.P.pdf. In it, the court found that the prison system’s general rule against beards was adequately justified, but that prison officials failed to appropriately address “the feasibility of implementing a religious exemption or [to] discuss[] whether a one-eighth-inch beard would in fact implicate the identified health and security concerns in the Policy.” The court emphasized the point you made, too, that the accommodation of medical issues raises an issue why religion can not be similarly accommodated. So, remand.
The opinion is by Chief Judge Traxler, joined by Justice O’Connor and Judge Shedd.
Posted by: Margo Schlanger | May 18, 2012 10:57:20 AM
The efforts are important but I have my doubts that the “war on religion” critics are on average overly concerned with religion in prison, particularly the non-mainstream ones religious freedom cases often are concerned with.
Posted by: Joe | May 18, 2012 9:17:42 AM