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October 13, 2014 0

Supreme Court Inmate Beard Case Illustrates True Purpose Of Federal Free Exercise Laws

Last week, the U.S. Supreme Court heard argu­ments in a case (Holt v. Hobbs) brought by an obser­vant Mus­lim inmate chal­leng­ing an Arkansas Depart­ment of Cor­rec­tions (“DOC”) pol­icy bar­ring beards worn for reli­gious rea­sons.  ADL had joined a friend-of-the-court-brief filed by a coali­tion of reli­gious orga­ni­za­tions in sup­port of the inmate.   Given the facts of the case, the ques­tions and answers at oral argu­ment, and the Court’s overly broad read­ing of a fed­eral law sim­i­lar to the one at issue in this case, there likely are five jus­tices who will side with the inmate.holt-v-hobbs

Forty state prison sys­tems allow inmates to wear beards with­out lim­i­ta­tion, and another three allow beards with some lim­i­ta­tions.  But the DOC pro­hibits inmates from wear­ing half-inch beards for reli­gious reasons.

The inmate – Gre­gory Holt – chal­lenged the beard pol­icy under the Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (“RLUIPA”).   It is sis­ter leg­is­la­tion to the Reli­gious Free­dom Restora­tion Act (“RFRA”), the law at issue in the trou­bling Hobby Lobby deci­sion where the Court found that the Afford­able Care Act’s con­tra­cep­tion man­date “sub­stan­tially” bur­dened the reli­gious exer­cise of a for-profit cor­po­ra­tion.  Both statutes apply strict scrutiny – the most robust con­sti­tu­tional stan­dard – when neu­tral laws or gov­ern­ment rules sig­nif­i­cantly bur­den reli­gious exercise.

At the argu­ment, DOC’s attor­ney jus­ti­fied the beard pol­icy based on pris­oner misiden­ti­fi­ca­tion and hid­den con­tra­band con­cerns.  But he could not cite to an exam­ple of either.  The attor­ney also had dif­fi­culty explain­ing why the Court should give def­er­ence to the pol­icy when inmates are per­mit­ted to have quarter-inch beards for med­ical rea­sons, wear their hair to the mid­dle of the neck, and grow Afros with­out lim­i­ta­tion, all of which arguably could pose the same concerns.

This case reflects the true pur­pose of both RLUIPA and RFRA: to shield reli­gion from gov­ern­ment bur­dens — not detri­men­tally impos­ing reli­gious beliefs on oth­ers as was the case in Hobby Lobby.  Based on DOC’s fail­ure to show a mate­r­ial effect on prison secu­rity, the Court should find in favor of Mr. Holt.  Allow­ing him to wear a short beard upholds his reli­gious lib­erty with­out impos­ing his faith on or caus­ing harm to others.

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July 11, 2014 0

Order in Wheaton College Case Raises More Concerns About Hobby Lobby

On the heels of the deeply trou­bling and con­tro­ver­sial Hobby Lobby deci­sion, the Supreme Court on July 3rd issued another dis­turb­ing order in a chal­lenge to the Afford­able Care Act (“ACA”) con­tra­cep­tion man­date.  This order, cou­pled with the Hobby Lobby deci­sion, indi­cates that the Court may be effec­tively strik­ing a cen­tral require­ment from an impor­tant reli­gious lib­erty law – the fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”).  That require­ment is that some­one claim­ing pro­tec­tion under the law must show that his or her reli­gious prac­tice was sub­stan­tially bur­dened.supreme-court-civil-rights

In Wheaton Col­lege v. Bur­well, a religiously-affiliated col­lege that opposes cer­tain forms of birth con­trol is chal­leng­ing the process by which they indi­cate to the gov­ern­ment that they qual­ify for an excep­tion to the con­tra­cep­tion man­date. This excep­tion allows reli­gious, non-profit employ­ers such as the col­lege, to opt out of pro­vid­ing employee health insur­ance that cov­ers con­tra­cep­tion.  But, iron­i­cally, the col­lege claims that apply­ing for this excep­tion (which involves com­plet­ing a two-page gov­ern­ment form) vio­lates its rights under RFRA, which was the same law that for-profit cor­po­ra­tions suc­cess­fully used to chal­lenge the man­date in the Hobby Lobby case.  In the July 3 order, the Court employed a rarely used legal mech­a­nism to tem­porar­ily block imple­men­ta­tion of the excep­tion while the case is still under appeal.

RFRA requires the fed­eral gov­ern­ment to demon­strate the most strin­gent con­sti­tu­tional stan­dard when it imposes a “sub­stan­tial” bur­den on a person’s reli­gious exer­cise.   As ADL pointed out in its ami­cus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term sub­stan­tial is not an acci­dent, but was included to make clear that the statute’s strong pro­tec­tions could not be trig­gered by inci­den­tal or minor bur­dens on reli­gion.   In fact, the Sen­ate Report on RFRA states that Con­gress added the term so that the law “would not require [a com­pelling gov­ern­ment inter­est] for every gov­ern­ment action that may have some inci­den­tal effect on reli­gious institutions.”

Based on this report and other prece­dent, the brief ADL joined in Hobby Lobby argued that the sec­u­lar, for-profit cor­po­rate plain­tiffs were not eli­gi­ble for RFRA’s pro­tec­tions because, among other rea­sons, any bur­den on their reli­gious exer­cise was inci­den­tal and not sub­stan­tial.  Unfor­tu­nately, the Court did not agree with ADL’s argu­ment.  It ruled that appli­ca­tion of the con­tra­cep­tion man­date to the cor­po­ra­tions did sub­stan­tially bur­den their reli­gious exer­cise and vio­lated RFRA.

The Court’s sub­se­quent action in the Wheaton Col­lege case ren­dered this mis­guided con­clu­sion even more ominous.

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