The Supreme Court has held in Holt v. Hobbs that the Arkansas prison system may not impose a beard-length requirement on a Muslim inmate who invoked the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The prison asserted that ¼-inch was the maximum length for beards. He said he needed it longer and then declared that ½-inch would do. It is actually a shame the Court took this case for its first application of RLUIPA in a prison context. These facts make the prison look arbitrary and ridiculous for refusing to permit the extra ¼-inch. Yet, there are larger issues at stake, which were displaced by RLUIPA’s obsessive focus on the one, individual believer to the detriment of public policy and good prison management.
As prison administrators must do across the country, the Arkansas authorities refused to make a special rule for this one prisoner. Prison authorities have explained to me, and it makes perfect sense: Once there is one exception to a prison regulation, there will be no end to the number and creativity of the individualized requests to follow. Inmates keep constant track of how others are treated in comparison to themselves. As they also have educated me: who pays for individualized handling of each rule? Taxpayers. This case is not only about one man who wants an extra ¼-inch on his beard, but rather the plethora of demands that can be raised against prison authorities involving every conceivable faith and all aspects of the prison environment, including uniforms, food choices, free time, reading materials, and communal meetings with fellow believers.
Holt filed, on his own, a lawsuit invoking RLUIPA and demanding the right to have the exception to the general prison rule that he was denied by the authorities.
RLUIPA is the statute enacted to apply to state prisons and land use following Boerne v. Flores, in which the Supreme Court held the statute’s predecessor, the Religious Freedom Restoration Act (“RFRA”), unconstitutional. They contain the same misguided standard. RFRA and RLUIPA permit religious believers to overcome neutral and generally applicable laws by demanding that the law be tailored to their religious conduct. How? By implementing an extreme standard for free exercise that was rejected by the Supreme Court in its earlier free exercise cases.
Here is the CliffsNotes version of RFRA/RLUIPA: (1) the believer must first prove the law imposes a “substantial burden” on religiously motivated conduct; (2) the government then must show (a) that the law serves a “compelling interest” and (b) that it does so in the “least restrictive means.”
Before RFRA was enacted, religious litigants had been trying to obtain this standard in all free exercise cases. Their attempts were rejected by the Court again and again, with the most relevant rejection occurring when the Supreme Court decided Church of Lukumi Babalu Aye v. Hialeah a mere five months before RFRA. The lawyer for Church of Lukumi Babalu Aye, the very same law professor who won for Holt today, argued to the Court that the Free Exercise Clause required the Court to examine a law for whether it was the “least restrictive means” for the church. The Court rejected the standard, holding the line on a wise balance between religious liberty and the rule of law. Five months later, Congress did not.
Rewriting the Court’s Own Free Exercise History
With a misleading sleight of hand, the Holt v. Hobbs opinion, authored by Justice Samuel Alito (the very same author of Burwell v. Hobby Lobby), explains how the RFRA formula relates to its prior free exercise doctrine as follows:
RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Id., at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder, 406 U. S. 205 (1972), and Sherbert v. Verner, 374 U. S. 398 (1963). In those cases, we employed a balancing test that considered whether a challenged government action that substantially burdened the exercise of religion was necessary to further a compelling state interest. See Yoder, supra, at 214, 219; Sherbert, supra, at 403, 406.
The way this is drafted, it sounds as though Sherbert and Yoder were two of many cases that Smith supposedly repudiated. Not so—as the Smith decision accurately stated, the “vast majority” of prior cases had applied the Smith approach.
It is difficult to believe that Justice Antonin Scalia, who wrote the majority decision in Smith, signed onto this misstatement of the Court’s prior law and repudiated the core truth at the heart of his opinion. In any event, Sherbert did not actually involve a neutral and generally applicable law; the law at issue in that case was not generally applicable. And Yoder was a proverbial “derelict on the waters” as the only free exercise case in which the Supreme Court ever held that strict scrutiny should be applied to a neutral and generally applicable law.
The Holt Court, however, does hew to the fact that RLUIPA and RFRA provide much more expansive protection for religious litigants challenging a law that applies to everyone else than does their previous doctrine.
Burying the Earlier Prison Free Exercise Cases in Which the Federal Courts Deferred to Prison Authorities and the Re-alignment in the Separation of Power Between the Courts and the Executive and Legislative Branches
When the Court held RFRA unconstitutional in Boerne, one of the stated reasons was that it violated the separation of powers. Holt v. Hobbs, along with Hobby Lobby, beautifully illustrates how RFRA and RLUIPA re-align the separation of power between the unaccountable judiciary and the accountable legislative and executive branches. Judges become law and policy makers.
Under the First Amendment’s Free Exercise Clause, the prison cases before RFRA and RLUIPA were decided such that the judiciary deferred to the executive branch’s security and policy decisions in the prison context. That healthy deference between the branches in my view was set out in O’Lone v. Estate of Shabazz and Turner v. Safley. Those cases established a balance of power between the courts and the executive branch in the prison context that left most policy decisions to the administrators, unless there was a serious violation of the prisoner’s fundamental rights. Not anymore, with RLUIPA and RFRA.
Judges and Justices are now stepping into the shoes of the executive and legislative branches and unilaterally determining what would be a better policy for this institution that will accommodate this one religious believer. Where do they obtain this power? Through RFRA/RLUIPA’s “least restrictive means” analysis.
The “Least Restrictive Means” Test and the New Lochner Era: Judges Unilaterally Setting Public Policy
Holt, like Hobby Lobby before it, shows how the RFRA formula transforms judges into executive policy and legislative lawmakers. The element of the formula that hands judges this power is the “least restrictive means” test.
In Hobby Lobby, Justice Alito, writing for a 5-member majority, addressed the Affordable Care Act and the contraception mandate in a way that put the Justices in the policy driving seat. The Court there, and here, skates through the “substantial burden” and “compelling interest” elements of the analysis to then slow down and savor the power to establish national or state policy based on their lights.
In Hobby Lobby, the majority took “least restrictive means” analysis to give them latitude to land on a lesser restrictive means that Congress will never enact due to economic and political realities, as I discuss here. Hobby Lobby confirmed that when the policymaker is ensconced in a courtroom, rather than the hurly burly of the legislative or executive processes, implausible alternatives become plausible. As Justice Powell pointed out long ago, this test is limited only by the scope of a Justice’s imagination.
The same analysis occurred in Holt. Suddenly, the Justices became experts on what length beard is consistent with a prison’s security concerns. It is obviously not even a ½-inch, they reasoned. How did they know? Because they do. Then the best part follows in which the Court theorizes about the ways in which the authorities can achieve security without this beard-length limitation: (1) prison guards can simply search the beards of prisoners rather than this silly blanket rule or (2) have prison guards run a comb through the beard. I imagine prison guards are standing in line for those jobs.
Even more implausible is the response to Arkansas’ argument that it is concerned about longer beards, because they make it more difficult to identify an inmate when he shaves. The Court responded that if the prison is worried about the guards being able to identify each prisoner by sight when they change their appearance through beard-growth or shaving, require them not to have a beard on entrance and take their pictures without the beard when they arrive!
This latter point totally escapes me. They are holding that Holt has a right under RLUIPA to have a beard in prison. Didn’t that right exist when he walked through the door? The Court is strangely setting up the next RLUIPA case, where the religious prisoner will argue that he can’t be required to shave in the first place, and, therefore, there can be no pictures of him without his beard. But the prison cannot require him to keep a beard he does not want and, therefore, if and when his appearance changes, apparently too bad for the guards.
Plus, according to the Court, hair is fungible: hair on the head should be considered identically with hair on the face. So if the prison permits longer hair on the head, well, it must permit it on the face.
The reasoning also obliterates any concerns about federalism, which was also a reason that RFRA was held unconstitutional in Boerne. There are 50 state prison systems, and ordinarily, they are primarily under the control of each state, because the power to punish for criminal violations is a mark of sovereignty. Apparently not with RLUIPA. The Court fell for the bait that if other prisons handle the issue (beard-length) in a different way, that shows that this prison should be able to do what they are doing. In other words, we are now facing a nationalization of prison security rules skewed toward the specific needs of individual religious prisoners, without reference to the budget, prison population, or law of the state in which the prison sits. Note in future cases: prison authorities need to include their budgets and budget cuts in the record so the Court will take the taxpayers’ money seriously as opposed to its flip charge of the prison being merely “bureaucratic.”
What is truly mindlessly bureaucratic is mandating the same rules for every prison in each of the 50 states under a religious liberty statute, given the huge number of religious sects in the United States and particularly in the prisons. It is sometimes difficult to keep up with the permutations of faith in the prisons. The state of Washington actually instituted a rule that permits prisoners to claim up to three religions each.
This Is a New Lochner Era: Unaccountable Judges Stepping into Lawmakers’ Shoes
While it is true that the courts have not unilaterally chosen to become policymakers, but rather the RFRA/RLUIPA formula has nudged them down that primrose path, the institutional incompetence of judges to make the “least restrictive means” assessment cannot be overstated. Judicial imagination is no substitute for being in the thick of accountability where legislators and the executive branch exist.
The Supreme Court thought it was capable of making policy judgments about labor conditions in the early part of the twentieth century, when it created the so-called “liberty of contract” out of the Due Process Clause and invalidated the increasing amount of legislation mandating better and safer working conditions in the wake of the Industrial Revolution. The lead case was Lochner v. New York, in which New York had enacted a law to limit the hours bakers could work. The Court invalidated the law based on the right of bakers to choose to work in a bakery, to accept lengthy hours voluntarily, and because there was no public interest implicated: “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.” Talk about missing the point!
To interpret the newly created right to contract, the Court adopted an early version of strict scrutiny, which puts the courts in the business of second-guessing the legislature. The Lochner Court invalidated the New York law because it was not “necessary or appropriate.” Necessity is a rough equivalent of the standard now imposed under RFRA and RLUIPA.
What happened? The Court rushed in to cast its judgment regarding laws regulating working conditions. But then no reliable, principled constitutional standard emerged that would guide judges in their assessments of each law. The doctrine simply invited judges and Justices to be super-legislators, which is not their forte. The doctrine was abandoned.
With respect to RFRA and RLUIPA, the solution is not as easy. The problem, however, is increasingly apparent.