Guest post by Daniel Bennett
On Tuesday the U.S. Supreme Court heard oral arguments in Holt v. Hobbs. In this case, an Arkansas prisoner is arguing for the religious right to grow a one-half inch beard.
Based on the transcript of these arguments, the Court seems prepared to rule for Holt’s right to grow a beard. Below are some highlights of yesterday’s arguments.
First up was Douglas Laycock, an attorney with the Becket Fund for Religious Liberty who argued the case for Holt:
Ginsburg: “I think that the Sikh practice of not cutting hair ranks as a religious practice. So not cutting hair and wearing a turban…could a prison say, we won’t allow that because it is too easy to hide contraband?”
Laycock: “Yeah, that may be. I don’t know what the evidence would show about Sikh hair wrapped in a turban. But that’s clearly a much more serious issue than what’s presented in this case.”
Roberts: “You take deference entirely out of the equation by saying, look, we’re only asking for half an inch.”
Laycock: “Well, we haven’t taken deference out of the equation, but when we only ask for half an inch and when they offer so little evidence and no examples and no consideration of solutions elsewhere, they haven’t done anything to deserve deference.”
And next up was David Curran, a deputy attorney general for Arkansas who argued the case for Hobbs. Spoiler: it does not go well for Curran.
Curran: “If a mistake [regarding identifying a prisoner] is made, an inmate could get into the barracks where he is not supposed to be in and an assault could occur…. And that is very serious in our environment.”
Roberts: “But you have no example of that every happening.”
Curran: “I have no example of – well, let me say this. In our brief, on footnote 13 and on page 26 of the 18 States amicus briefs, there are examples. There are no record examples here.”
Breyer: “I take it there’s no example, not a single example in any state, that allows beard policies where somebody did hide something in his beard.”
Curran: “I think that’s mostly right, Your Honor. I think there’s an affidavit – ”
Breyer: “So we have no example.”
Curran: “There is no example.”
Alito: “As far as searching a beard is concerned, why can’t the prison just give the inmate a comb…and say comb your beard, and if there’s anything in there, if there’s a SIM card in there or a revolver or anything else you think can be hidden in a half-inch beard, a tiny revolver, it’ll fall out.”
Curran: “You know, I suppose that’s a possible alternative. I think the concern there is there’s no perfect way of searching and there’s a lot of area there and you’re going to have to really monitor to make sure they get all the spots. But – ”
J. Alito: “Do you really think that would be difficult, to say here’s a comb, comb your beard?”
Curran: “I don’t think it would be that difficult. I mean, I’m not in the prison environment. It really wasn’t raised on this record. My clients might think that it is, but based on the information I have, I would agree that sounds like that would be something that could be done”
These exchanges paint a dreary picture for Hobbs. The justices appeared unimpressed with the prison’s reasoning for forbidding beards – even Curran seemed to backtrack on some key points.
On the other hand, Laycock’s argument appeared to resonate with the justices: when restricting inmates’ religious liberties, courts should only defer to prison officials when they have evidence necessitating these restrictions.
Since Arkansas could not offer clear, evidence-based reasons supporting its beard policy, it should surprise nobody to see a forceful opinion in Holt’s favor sometime next spring.
Daniel Bennett (@), PhD, researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.