Today in the Supreme Court, another religious accommodations case — this time, about beards in prison.

You remember all the fuss about Hobby Lobby, last summer's case about the Religious Freedom Restoration Act and the Obamacare requirement that employers provide health insurance coverage that includes birth control. The Religious Freedom Restoration Act doesn't apply to the states — not because Congress didn't try to impose it on the states, but because Congress only has the powers enumerated in the Constitution — really! — and the Supreme Court actually said that Congress didn't have an enumerated power for that. But then Congress passed the Religious Land Use and Institutionalized Persons Act, using its spending power to impose the same obligation to accommodate the religion of prisoners on any state accepts federal money for its prisons.

So the question up for argument today is whether the Arkansas prison rule against beards must give way to a prisoner's religion-based demand. The man is Gregory Holt, and it doesn't matter why he's in prison, does it? (If you're interested: He murdered a woman.) It doesn't matter which religion is the source of his need, does it? (If you're interested: He's Muslim.)

Under RLUIPA, if the no-beards rule puts a substantial burden on Holt's exercise of religion, the state must show that it's the least restrictive means for serving a compelling interest. (An added problem here is that Arkansas also allows quarter-inch long beards for prisoners with a medical need to avoid shaving. Holt wants a half-inch beard.)

The assertion of compelling interest is based on, first, the idea that a prisoner might — and I confess to giggling while typing this — hide things in his beard...


(That illustrates for this limerick.)

... and second, the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.

Is it obvious that Holt should win under this standard? What can you hide in a half-inch beard? As for escaping, don't let him escape! But, on the other hand, the Court might be especially deferential toward the judgment of the prison officials. Back in 2005, in Cutter v. Wilkinson, when a unanimous Supreme Court said that RLUIPA didn't violate the Establishment Clause, there was some talk about deference:

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a "compelling governmental interest" standard, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003). 

Grutter v. Bollinger is the affirmative action case that accepted classroom diversity as a compelling governmental interest. You see the point: Compelling is maybe not really all that compelling when we've got government authorities who need to exercise subtly context-based judgment.

Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103–111, p. 10 (1993)).

So RLUIPA applied to the state prisons should perhaps work quite differently from the Religious Freedom Restoration Act applied to the federal government. Deferring to the HHS's idea of what is compelling in the area of health insurance coverage is different from deferring to prison authorities about what's compelling in the area of prison security. The state prison authorities, the Court suggested in Cutter are more like those law school admissions committees in Grutter, more worthy of deference.