Op-Ed

Short beard or shorter beard?

WASHINGTON – You give a prisoner an inch of beard, he'll take a mile. And the next thing you know he’s Jasper Beardly. At least that seemed to be a concern plaguing the nine justices at the Supreme Court on Tuesday as they explored the burning penological question: What kind of things might lurk in a half-inch beard that don’t lurk in a quarter-inch beard? What kind of dangerous things can a prisoner hide in his half-inches of beard? Razor blades, SIM cards, tiny little pistols, an entire Hobby Lobby franchise? These are the issues the court grappled with Tuesday morning.

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.

Under a statute known as the Religious Land Use and Institutionalized Persons Act – a stepbrother statute to the Religious Freedom Restoration Act – government institutions cannot impose a “substantial burden” on the “religious exercise of a person residing in or an institution,” without showing a “compelling governmental interest” and demonstrating that the way they have imposed that burden is the “least restrictive way to do so.”

Holt wants to grow a full beard and would settle for a half-inch beard, but Arkansas prison officials said no. Both the federal district court and the U.S. Court of Appeals for the 8th Circuit ruled against the prison, and Holt filed a handwritten petition to the Supreme Court asking the justices to intercede.

None of the fractiousness of last term’s Hobby Lobby dispute surfaced Tuesday. This court likes religion and it hates pretext. After an hour it seemed clear that the justices were deeply skeptical of the prison’s claims that their security needs outweigh Holt’s religious liberty.

Douglas Laycock, who teaches law at the University of Virginia and who filed an amicus brief in Hobby Lobby on behalf of the Christian Legal Society, represented Holt Tuesday. He opened his argument by noting that “40 other prison systems permit beards without a length limit, yet Arkansas prohibits even half an inch.”

Justice Antonin Scalia, while not inclined to dispute prisoner Holt’s religious beliefs, questioned his apparent reasonableness: “Mr. Laycock, the problem I have with your client’s claim of religious requirement is the religious requirement is to grow a full beard, isn’t it? Now, let’s assume in a religion that requires polygamy. … Could I say to the prison, OK, I won’t have three wives; just let me have two wives. I mean, you’re still violating your religion, it seems to me.”

Laycock replied, “I don’t think he should be penalized for being reasonable here.”

Scalia cut him off: “Well, religious beliefs aren’t reasonable. I mean, religious beliefs are categorical. You know, it’s … God tells you. It’s not a matter of being reasonable.” He looks amazed. “God, be reasonable?”

Reasonable or not, God let Laycock persuade a skeptical Scalia and an even more skeptical Chief Justice John Roberts that he needn’t find some limiting principle between a challenge to a half-inch beard policy and a future challenge to a two-inch policy. As the chief said: “You just say, well, we want to draw the line at half-inch because that lets us win. And the next day someone’s going to be here with one inch. And maybe it'll be you. And then, you know, two inches.” Laycock urged the court to wait for that case before creating a categorical rule.

“I don’t want to do these cases half inch by half inch,” retorted Scalia. And the case inched on.

Justice Elena Kagan noted that “whether it’s a full beard or long hair or whether it’s a turban, there will be some ability to say, even though it’s just teeny tiny, there is some increase in prison security that results from disallowing this practice.” Given that the statute requires that courts defer to the prison staff, how much of a security difference should they look for? “Teeny tiny isn’t enough,” says Kagan. “But how about, you know, measurable, although small?”

Laycock replied, “In fact, they have no examples of anything hidden in beards, and certainly not in a very short beard.” He adds that there is no reason to defer to prison officials when “they haven’t done anything to deserve deference.”

Anthony Yang had 10 minutes to argue for the solicitor general’s office, which is in the case on the side of half-inch (as opposed to quarter-inch) beards. Roberts wanted to know, “Where are you on the full beard?” Yang replied: “A state may well be able to show that a full beard would run real risks that are just not present in the half-inch beard that we have here.”

It was only a matter of minutes before Arkansas Deputy Attorney General David Curran was fully exposed to the many dangers that lurk in the 5 o’clock shadows: in this instance, Samuel Alito. Curran opened by explaining that the Arkansas prison’s interests in a close shave are twofold: deterring prisoners from altering their appearance and ensuring they are not concealing contraband.

Justice Ruth Bader Ginsburg posited that inmates can probably conceal a good deal more contraband in long hair and turbans, which the prison nevertheless permits. This is because, as she noted, if you “hide something in a beard and it might drop out.”

Curran then clarified that the prison seems to have changed the quarter-inch beard policy for something that sounds more like a Don Johnson policy in the recent year (although this new argument appears nowhere in the briefs).

The truth is, as Justice Stephen Breyer pointed out, Curran was 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.

Lithwick writes about the courts and the law for Slate.

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