Last month, we mentioned a Supreme Court case involving religious facial hair. With the case being heard this week, Georgetown Law professor Jeffrey Shulman has an insightful piece up on Yahoo News about the promotion of religious belief over the law of the land. While the most obvious example is the Hobby Lobby ruling (and related decisions and cases based on it), Shulman points to this less well known case:
Abdul Maalik Muhammad, who will enter legal history as Gregory Holt, wants to grow a beard in accordance with his Salafi Muslim faith. Though obligated by his understanding of Islamic law to leave his beard entirely uncut, Mr. Holt seeks to grow only a half-inch beard. The problem is that he is in an Arkansas state prison, where he is serving a life sentence for burglary and domestic battery, and state prison officials have their own set of hair dictates.
Holt argues that he should be able to grow his half-inch beard, because to do otherwise would infringe on his religious beliefs. And while the state Department of Correction allows quarter-inch beard growth in cases of medical necessity, beard growth of greater length or for alternative reasons is prohibited. These are not arbitrary rules, but rules based on a number of legitimate concerns, including beards providing a “hiding place for contraband,” the ability for an escaped prisoner to alter his “appearance by shaving his beard,” and the possibility of breeding resentment by making exceptions to the rules.
As Shulman points out, however, this is likely not enough, as the case is not being argued on Constitutionality, but as a violation of the Religious Land Use and Institutionalized Persons Act. RLUIPA is a statute introduced after our old friend the Religious Freedom Restoration Act (the basis for the Supreme Court’s decision in Hobby Lobby) was overturned in 1997 “insofar as it applied to the states” (leaving the federal portions intact). Where RFRA cannot, RLUIPA “applies strict scrutiny to claims of religious burdens involving prisoner rights or discriminatory land use.”
Shulman explains the importance of this distinction between rational basis review and strict scrutiny:
Most laws (or other forms of state action) receive a deferential review from the courts, despite the fact that they might impinge upon a host of personal prerogatives. Under “rational basis review,” courts presume the constitutionality of legislation. The party trying to overcome this presumption must show 1) that the law serves no legitimate purpose, or 2) that the means employed by the law has no rational relation to the law’s stated goal.
But laws (or other forms of state action) that impinge upon rights considered to be “fundamental” get a far more skeptical judicial reception. Under a “strict scrutiny” standard, courts will presume that such a law is unconstitutional. To overcome this presumption, the government must show 1) that the law serves a compelling purpose, and 2) that the means employed by the law are as narrowly tailored as possible to achieve the law’s stated goal.
Because the hurdle of strict scrutiny is so difficult to clear (“strict in theory and fatal in fact,” it is commonly, if not entirely accurately, said), the level of review employed by the court can easily determine the outcome of a case.
RFRA, and later RLUIPA, were introduced as a reaction to the 1990 Supreme Court ruling Employment Division, Department of Human Resources of Oregon v. Smith, which found that use of the prohibited substance peyote was not a protected act despite use being a product of religious belief. (RFRA, it should be noted, was a bipartisan bill, crafted and supported by a host of well-meaning people… illustrating that there is some truth to the old adage about the road to hell being paved with good intentions). In that decision, the justices argued that strict scrutiny was not applicable to such attempts at exemption from the law.
Shulman poses the crucial questions:
Was Justice Scalia wrong in Smith to warn that strict scrutiny review of neutral and generally applicable laws would “make the professed doctrines of religious belief superior to the law of the land, and in effect… permit every citizen to become a law unto himself”? And should we not ask — indeed, some have — what business Congress has in telling the Supreme Court that it must apply strict scrutiny where the Court has already decided it is inappropriate to do so?
I think the answer is already clear and will continue to become even more so as more of these cases are brought: if the law can only be enforced if the government demonstrates that there is simply no other way to achieve the same means, we will be left with a bizarre and ultimately unworkable legal maze that exempts almost anyone professing almost any belief (regardless of its basis in reality) from almost any law. If closely held religious belief is all that’s needed to exempt someone from “neutral and generally applicable” laws, the law essentially loses all value, and every citizen indeed becomes “a law unto himself.”
You can read more about the case, Holt v. Hobbs, here.
(Image via Shutterstock)