New York Times

Justices Say Case of Inmates Beard May Not Be the Best Test of Religious Liberty

WASHINGTON — As Supreme Court arguments started on Tuesday in a religious liberty case, several justices expressed an unusual concern. They said the question before them, whether prison officials in Arkansas may prohibit a Muslim inmate from growing a half-inch beard, was too easy.

Such short beards are not a problem from the standpoint of prison security, Chief Justice John G. Roberts Jr. told a lawyer for the inmate.

“You’re really just making your case too easy,” the chief justice said. Full beards or turbans, he said, presented a more vivid clash between religious liberty and prison security.

Justice Antonin Scalia seemed to agree, saying the court should consider dismissing the case and waiting for a harder one. “I don’t want to do these cases half-inch by half-inch,” he said.

The case, Holt v. Hobbs, No. 13-6827, was brought by Gregory H. Holt, who is serving a life sentence for burglary and domestic battery. He persuaded the justices to hear his case by filing a handwritten petition.

Douglas Laycock, a lawyer for Mr. Holt, said the court should use the case to announce a legal principle that would guide judges in other cases. He said prisoners should prevail unless corrections officials can demonstrate that the religious practices in question have “a material effect” on prison security.

Justice Scalia suggested that Mr. Holt may have made the case too easy by violating the tenets of his faith. “The religious requirement is to grow a full beard, isn’t it?” Justice Scalia asked.

Mr. Laycock responded that his client should not be penalized for being reasonable.

Justice Scalia said compromise cannot be reconciled with faith. “Religious beliefs aren’t reasonable,” he said. “Religious beliefs are categorical. You know, it’s God tells you.”

Anthony A. Yang, a lawyer for the federal government, also argued in support of Mr. Holt. Like Mr. Laycock, Mr. Yang seemed content to limit his argument to half-inch beards.

“A state may well be able to show,” he said, “that a full beard would run real risks that are just not present in the half-inch beard that we have here.”

That position seemed to frustrate Chief Justice Roberts. “What do we do?” he asked. “Just litigate a dozen cases till we settle on one and three-quarters inches, or what?”

After a half-hour of questioning that seemed to assume that at least short beards should be allowed, David A. Curran, a deputy Arkansas attorney general, faced a difficult task.

Arkansas’s prison regulations allow “neatly trimmed” mustaches, along with quarter-inch beards for inmates with dermatologic problems. Other kinds of beards are banned.

Mr. Holt sued under a federal law that requires prison officials to have a compelling reason for restrictions that place a substantial burden on inmates’ religious practices.

In defending the regulations in the lower courts, prison officials relied mostly on two justifications. On Tuesday, Mr. Curran did not do much to defend either one.

He effectively abandoned the argument that beards should be banned because escaped prisoners could easily change their appearance, a move that surprised Justice Scalia.

“What prevents you from taking a photograph before he grows the half-inch beard, which can then be distributed to police departments if he escapes?” Justice Scalia asked.

“You know, I agree,” Mr. Curran said.

Nor did Mr. Curran do much to press the argument that prisoners could hide contraband in their beards, conceding that he had no examples of such smuggling.

He relied instead on a third rationale for banning beards, one based on what he said was a distinctive practice in Arkansas’s prisons. The state uses barracks to house as many as 60 prisoners to a room and has them work in fields outside the prison fence, he said.

A prisoner who altered his appearance “could get into the barracks where he is not supposed to be and an assault could occur,” Mr. Curran said. “And that is very serious in our environment.”

He said this distinguished Arkansas from more than 40 other prison systems that allow beards, mostly without limitations on how long they can be.

“We are not like California,” he said. “We are not like New York. They have cell block housing.”

Justice Samuel A. Alito Jr. did not seem convinced. He noted that prisoners in Arkansas must display identification cards bearing their photographs and that it would take elaborate measures to forge or switch them.

“I’m having difficulty envisioning the scenario that you’re suggesting,” Justice Alito said.

Mr. Curran responded that inmates were inventive and “are capable of doing a lot of mischief in prison.”