Not just splitting hairs...

Not just splitting hairs…
Religious obligation and prison security face off before Supreme Court

Eric Michael Mazur
Religion, Law, & Politics Fellow

Religious obligation and prison security face off before Supreme Court

By all accounts, Abdul Maalik Muhammad has not been a particularly nice fellow. He is currently incarcerated in Arkansas for stabbing a former girlfriend, pleaded guilty to threatening to kidnap and harm the daughters of former President George W. Bush, has made clear his intention to harm public officials, including the prison barber—with whom he considers himself “at war”—and once held a knife to a fellow prisoner’s throat in an argument over religion. But a number of organizations with deep interests in religious liberty have come to his defense. Why?

Mr. Muhammad, who before his conversion to Islam was known as Gregory Holt, believes that it is his religious obligation as a Salafi Muslim to maintain a beard that is—by a quarter of an inch—longer than that which allowed for inmates in the Arkansas prison system (but then only for medical reasons). He is suing that state under the provisions of the Religious Land Use and Institutionalized Persons Act—often called RLUIPA (and for reasons unknown, pronounced “R. lee-oopah”)—which was the second of two significant acts passed by Congress in the wake of the dramatic sea-change in Supreme Court jurisprudence (articulated in Oregon v. Smith, 1990) as it related to religious liberty. Portions of the first—the Religious Freedom Restoration Act (RFRA), of recent Hobby Lobby fame—had been ruled unconstitutional in Boerne v. Flores (1997), in which a Catholic parish was prohibited from renovating its church because it was in an historic district. RLUIPA was designed to address religion-related zoning issues like this (the “religious land use” part), but also to protect the religious rights of institutionalized persons: specifically, prison inmates and members of the armed services who had seen their religious rights threatened in Court decisions of the 1990s. Like RFRA (or “Riff-ruh”), RLUIPA required that, in cases where a religious adherent asserted that a governmental act imposed a substantial burden on his or her religious free exercise rights, the governmental body needed to prove that there was a compelling governmental interest being advanced by the restrictive legislation, and that this legislation was the least restrictive way to achieve the compelling governmental interest. In the past, federal courts had given prison officials, military leadership, and (not coincidentally) school administrators great deference to limit the rights of their charges, primarily in the name of maintaining order. The sponsors of RLUIPA sought a more balanced approach when addressing legitimate religious liberty claims.

But although RFRA has been the subject of a number of Supreme Court decisions (and many decisions in lower federal courts), this is only the second time RLUIPA has come before the High Court. The first time (Cutter v. Wilkinson, 2005), a unanimous Court ruled that the Act was constitutional—that it neither unconstitutionally advanced religion nor inappropriately privileged religious rights over other rights—but did not reach deeper into the finer workings of the formulas required by the Act: defining “substantial burden,” “compelling interest,” or “least restrictive means,” or what they meant in the context of the deference historically given to those in charge.

This time, however, the Court is much more likely to focus on these internal mechanisms of the Act. And while it is anyone’s guess how the Court will rule and who would write a majority opinion, most experts watching this case expect Justice Samuel Alito to play a significant role; while on the 3rd Circuit Court of Appeals, then-Judge Alito wrote the opinion in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark (1999), in which two Muslim police officers sued for the right to grow beards in accordance with their religious obligations but in violation of the Department’s facial hair policy. Central to the Circuit Court’s opinion in that case was the fact that Department policy permitted officers to grow facial hair to avoid medical complications that might result from shaving; the presence of any exception to the rule suggested that a religious exception was being singled out as less authentic.

The same is true here. Not only do many states permit facial hair (for various reasons) for male prisoners, but like the Newark Police Department in the 3rd Circuit, Arkansas permits (for medical reasons) prisoners not to shave. Representatives from various religious liberty watchdog groups have expressed their support for Mr. Muhammad. And although Mr. Muhammad wrote the successful appeal to the Supreme Court by himself (and in his own hand), for obvious reasons he was unable to argue the case when it was heard by the Justices in early October; internationally respected constitutional scholar Douglas Laycock spoke on his behalf.

A decision is likely to be announced some time in the spring (2015).