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.

Is it a violation of religious freedom to ban beards for prison inmates?

The Supreme Court just granted cert in Holt v. Hobbs...

... is a case filed directly by an inmate, in a hand-written petition.

The claim of entitlement to wear a beard for religious reasons, in spite of the general rule against beards in prison, is premised not on the constitutional right to free exercise (which authorizes government to impose neutral, generally applicable rules even though they burden religion), but on a statutory right to hold government to a strict scrutiny standard when it puts a substantial burden on religion. The statute in question is not the work of some backward state — as a layperson familiar with the recent to-do in Arizona might imagine — but the Religious Land Use and Institutionalized Persons Act, adopted by unanimous consent in the U.S. Senate and the U.S. House of Representatives and signed by President Bill Clinton in 2000.

ADDED: 2 weeks ago, we were talking about another case involving prison, hair, and RLUIPA, in which Supreme Court review is being sought. That case, from the 11th Circuit, is called Knight v. Thompson. We also talked about it last summer, and I showed you an old exam from my Religion and the Constitution class that depicted 5 different prisoners with different reasons — some religious — objecting to a rule requiring short hair.

It was very interesting to me to see how students would respond to the 5 different needs for long hair. If I remember correctly, most students found the Sikh's interest so strong that they began there. But then what happens? Do you include all? Just the Rastafarian-inspired man?  None of the others? And does thinking about that make you want to exclude the Sikh too? If your answer is yes, then you may be an 11th Circuit judge.

"[W]atching his hair fall to the floor during a mandated haircut in prison led him to feel that 'most of me was laying on the floor.'"

"Hair is closely connected to a Native American’s innermost being and identity, and has profound religious significance for all tribes. Hair constitutes part of one’s identity as an Indian person, and is a cornerstone element in Native American religious practice."

Seeking Supreme Court review of an 11th Circuit decision rejecting a claim under the federal Religious Land Use and Institutionalized Persons Act, under which state prisons that accept federal money must agree to refrain from putting substantial burdens on religion that are not supported by a compelling state interest.

What if a black widow spider were to nest in a prisoner's dreadlocks?

That happened once. There might also be a fungus hidden in the hair-covered scalp. Weapons might be stowed in the hair, and guards searching for them by hand are afraid of getting cut by razor blades. Moreover, if a long-haired prisoner were to escape, he'd have a ready means of disguise: cut off that hair. These and other reasons were the "compelling interests" that worked for the government in the 11th Circuit Court of Appeals, which rejected a claim for a religious exemption to the no-long-hair policy in prison.

"Court keeps alive inmate's quest for pork feast."

Headline at the National Law Journal makes the "quest" sound more absurd than it is. The prisoner, Derek Kramer, is an Odinist and he's suing in pursuit of his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act.

From the 7th Circuit court's opinion (PDF):

Odinism is a polytheistic religion, which was practiced for millennia in northern Europe before the rise of Christianity and has been revived in recent decades. The practice of Odinism includes group worship ceremonies. Pork is a sacred food to Odinists....

Specifically, Kramer asked for a feast on December 21st for the “High Feast of Yule” and “further requested that HAM/PORK be included in with the FEAST MEAL.”...

Kramer had a larger problem with the group worship at the Green Bay Correctional Institution: The Department of Corrections lumps the "Pagan" religions together for group worship purposes, and he objected to a specifically Wiccan ritual at the service. The demand for an annual pork feast was part of a larger effort to separate the Odinists from the Wiccans.

Kramer's loss on everything but the pork feast (which he hasn't yet won) is based on procedural matters that are probably only interesting to lawyers — unless you know how to be interested in the way procedure can operate to undermine rights.

RLUIPA and the Establishment Clause.

The Supreme Court has held that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which requires states to accommodate prisoners by relieving burdens on their free exercise of religion, does not violate the Establishment Clause.

Justice Ginsburg writes the opinion, for a unanimous Court. She notes that the law "alleviates exceptional government-created burdens on private religious exercise," that it does not "elevate accommodation of religious observances over an institution’s need to maintain order and safety," and that it does not prefer one religion over another religion.

It's important to see that the Court was looking at the statute in general, not at a specific application of the statute. If the statute in general violated the Establishment Clause, then "all manner of religious accommodations would fall":

Congressional permission for members of the military to wear religious apparel while in uniform would fail, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate “traditionally recognized” religions: The State provides inmates with chaplains “but not with publicists or political consultants,” and allows “prisoners to assemble for worship, but not for political rallies.”

It remains to be seen what will happen in particular cases, where prisons assert that they have a "compelling interest" in discipline or some other such matter, and the prisoner claims a "substantial burden" on religion. The Court assumes courts will keep prisoners from having much success using the Act:

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, see supra, at 5, “[c]ontext matters” in the application of that standard.

Shouldn’t we worry that applying the statute in the context of prisons will lead courts to broaden what is a "compelling interest" and reduce the protection given to the right against race discrimination? The Court’s citation at this point is University of Michigan affirmative action case, Grutter v. Bollinger. That is, the Court has already made “compelling interest” susceptible to “context” in the race discrimination area. It seems that where the courts respect the government activities in question, they will regard more interests as compelling.

In this case, the Court signals that prison discipline deserves plenty of respect:

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)).

What of the argument that the statute privileges religion over nonreligion? It says to prisoners, if you package your requests as religious needs -- a special meal, a special book -- you'll get better treatment. The Court dealt with this problem in footnotes 10 and 11, coming up with basically three answers:

1. The benefits to be gained are not that enticing:

While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as “benefits.” For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional supplement–each and every meal.”

2. The state already gives special treatment to requests based on religion -- it “provides chaplains, allows inmates to possess religious items, and permits assembly for worship” -- and we wouldn’t want to make that unconstitutional.

3. The state’s needs will come in for good-enough deference as courts define “compelling interest” fairly broadly.

Justice Thomas concurs, applying his federalism theory of the Establishment Clause, which is that the clause only forbids the federal government from interfering with established religions in the states. But in this case, the state doesn't have an established religion, the state is resisting accommodating religion.

This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion.

It's important to note the questions the Court did not reach. It did not consider whether Congress had the power to pass RLUIPA using either the Commerce Power or the Spending Power and whether it violates the Tenth Amendment. It only decided that the act, taken on its face, didn't violate the Establishment Clause. As noted, it remains possible to challenge the act under the Establishment Clause as it is applied in particular cases.

Slow start.

It's a rainy day here in Madison. The rain is knocking the petals off the red bud trees I've been enjoying just outside my dining room window for the last couple weeks. I'm getting a late start blogging (and everything else) today, because I lost about three hours of sleep in the middle of the night after someone dialing a wrong number woke me up at 2 a.m. People, when you're making phone calls in the middle of the night, be especially careful about the right number!

Now, I'm seeing that, during the night, my Site Meter clicked up over 1.5 million. That's pretty cool. It just hit 1 million around the 31st of January, a year and a half month after it began. Anyway, this traffic milestone -- and thanks for reading! -- is making me sorry I don't have some solid blogginess for you yet today.

So, I need to do some paper-reading and I want to do a little blogging. I've got an exam to write and an exam to grade and I'm working on a presentation for the local Bar Association about the Supreme Court's constitutional cases this term. Unfortunately, the cases I'm most interested in will not come out in time for my talk (next Tuesday). Thinking back over the term so far, I'm not coming up with much constitutional law of significance, especially outside of the criminal law area. There is the death penalty case (about those who commit their crimes at an early age), but what else?

UPDATE: That's "cases" not "case" I'm most interested in. What are they? The medical marijuana case (Raich) and the case about the Religious Land Use and Institutionalized Persons Act (Cutter). There's also the negative commerce clause case about wine importation (Granholm).

ANOTHER UPDATE: Ambivablog writes about blogging guilt (and links here).

Catering to religious constituents and ignoring federalism values: the Religious Land Use and Institutionalized Persons Act.

The Supreme Court heard oral argument yesterday in Cutter v. Wilkinson, a case about the Religious Land Use and Institutionalized Persons Act. This is an important case about religious freedom and federalism. The Free Exercise clause standing alone does not require the state to give special accommodations to religious believers, but Congress has attempted to require the states, as it runs its prisons, to make those accommodations.

The government "follows the best of our traditions" when it relieves burdens on religious practice for all religions, not just "majoritarian" ones, the acting solicitor general, Paul D. Clement, told the justices....

Douglas R. Cole, Ohio's state solicitor, asked the justices: "Can Congress really say to prisoners, 'We'd like you to be religious and we'll give you a better show for getting out from the rules that apply to everyone else?' "...

He also said the law provided an "impermissible incentive" to inmates to adopt a religion as a way of obtaining favored treatment. He said the law invited "constant pressure, day after day, if you want this set of benefits, get religion."

Quite aside from whether the Establishment Clause even permits states to choose to give special treatment to prisoners who invoke religion, the federal statute is a severe intrusion into the way states run their prisons. Was that intrusion justified? Were the states really inconsiderate of the religious needs of prisoners? Or was this like the Schiavo legislation -- Congress catering to its religious constituents and ignoring federalism values?

The complaint in the Schiavo case.

I've read the complaint in the federal court case brought by Terri Schiavo's parents. (Available here.) The defendants are the husband, the state court judge, and the hospice.

The claims against the judge are based on the "due process right to a fair and impartial trial," (on the theory that the judge became an advocate for her death) and on a "deprivation of due process" based on the judge's failure to appoint a guardian ad litem, his failure ever to assess Schiavo in person, and his failure to order various tests. The judge is also charged with violating her free exercise of religion in that forcing her to "engage in conduct proscribed by her Catholic faith specifically targets religion for special disabilities without a compelling reason for so doing."

The claim against the hospice is based on the federal Religious Land Use and Institutionalized Persons Act, which, it is alleged, covers the hospice because of its receipt of federal funding. RLUIPA would require a compelling reason to impose a "substantial burden" her free exercise of religion.

The religion-based claims against the judge and the hospice rely on the theory that the Catholic religion requires the continued feeding of a person in a persistent vegetative state and that, even though the defendants are not preventing Schiavo herself from taking an action required by her religion, that those caring for her are required to act pursuant to the requirements of her religion. That seems to be a difficult argument to make, even though, under state law, those caring for her are only able to withhold feeding because they attribute that desire to her. The federal religion claims assume that she must now want what the doctrine of the Catholic church requires, because, when she was able to think about such things, she was a Catholic.

The claim against the husband? I really don't know.

UPDATE: Kevin Drum links to this post and notes that I seem "pretty skeptical." He's right, I am.

Cert grants!

My previous post refers to the Supreme Court's grant of certiorari in two cases involving public Ten Commandments monuments. I'm quite interested in these cases--I teach a Religion & the Constitution class. I'm about to read the two Court of Appeals cases carefully, and I'll write something up about them later today. Friday, I'm going to talk about the cases on Joy Cardin's Wisconsin Public Radio show (on the "Ideas Network" stations, here). So if you're up between 6 and 7 am...

There is a second cert grant related to religion, Cutter v. Wilkinson. Here the question is the constitutionality of a federal statute--the Religious Land Use and Institutionalized Persons Act--requiring accommodations for prisoners whose practice of religion is substantially burdened. Among the prisoners bringing the lawsuit are "a Wiccan witch, a Satanist, [and] a racial separatist who is an ordained minister of the Christian Identity Church." The law resembles to some extent the broader Religious Freedom Restoration Act, which the Court held could not be applied to the states because Congress lacked power to pass that law under the enforcement clause of the Fourteenth Amendment. The newer law relies on Congress's spending power: state institutions must accept the requirement to accommodate religion as a condition if they want to receive federal funding. The challenge to this law is based on the Establishment Clause. In City of Boerne v. Flores, the 1997 case that struck down the Religious Freedom Restoration Act, Justice Stevens wrote a concurring opinion to say that that statute violated the Establishment Clause. But Stevens is the strongest separationist on today's Court, so it is hard to predict how well an argument about separation of church and state will work on the other Justices, but I note that recent Establishment Clause cases--such as Zelman and Locke--have reflected federalism values. I think in this new case, the majority may find it appealing to free the states from prisoner litigation and rely on their own judgment about how much to accommodate religion.

Then there were a couple of cert grants of the kind that only procedure types--and here I include myself as well--get excited about. The Court is finally going to deal with an oft-noted problem with the Supplemental Jurisdiction statute (28 U.S.C. § 1367), and, after all these years, it's going to talk about the Rooker-Feldman doctrine. At last! How long we have waited!