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Facial hair gets its day in the legal spotlight

March 7, 2014 by Scott Bomboy


It’s been a big week in the area of hirsute jurisprudence, better known as lawsuits about facial hair and haircuts, as two cases made national headlines.

Scales of justice
Scales of justice

The latest case involves a move by the United States Justice Department against the Philadelphia school district. On Wednesday, the Department filed suit against the school district, claiming a long-time Muslim district employee was penalized for growing his beard beyond a length allowed by the district.

In a statement, the Department claimed the “district discriminated against Siddiq Abu-Bakr, as well as other similarly-situated individuals, on the basis of religion in violation of Title VII of the Civil Rights Act of 1964.”

In the case of Abu-Bakr, the Department said he maintained an untrimmed beard for 27 years as an employee, but he was reprimanded after a 2010 grooming policy change by the school district.

While that case is just beginning, a second, bigger case is heading toward a conclusion sometime later this year or in 2015.

The Supreme Court said on Monday it will hear arguments in its next term about restricting beards behind bars.

Gregory Holt, 38, sent the Supreme Court a 15-page publicly available form asking the nine Justices to accept his case. Holt, also known as Abdul Malik Muhammad, is serving a life sentence for domestic violence and burglary, after he was convicted of cutting his girlfriend’s throat and stabbing her in the chest.

In granting Holt v. Hobbs, the Justices will focus on one question: Whether the Arkansas Department of Correction’ s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000 (or RLUIPA), to the extent that it prohibits Holt from growing a one-half-inch beard in accordance with his religious beliefs.”

Holt says his Muslim beliefs require him to grow a beard. Arkansas corrections officials claim their grooming policy prohibiting beards promotes hygiene and safety.

The Court previously blocked Arkansas from forcing Holt to shave the beard while his appeal was under consideration.

In his original handwritten note, Holt asked the Court to take his case as a conflict under the Religious Land Use and Institutionalized Persons Act, and whether his prison’s no beard policy violates his First Amendment religious rights. Holt also cited conflicting rulings in lower courts and said the Supreme Court had never decided the issue before.

Professor Ruthann Robson analyzed the case on the Constitutional Law Prof Blog and she’s also the author of the book, “Dressing Constitutionally.”

“For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means,” Robson said.

She said the Eight Circuit Court of Appeals, which ruled in favor of Arkansas, based its opinion on another Eighth Circuit case called Fegans v. Norris.

RLUIPA prohibits regulations that impose a “substantial burden” on the religious exercise of persons residing or confined in an institution. Regulations amounting to a substantial burden are permitted if the government can show they serve a “compelling government interest” and they are the least restrictive way the government can identify a compelling interest.

In Fegans v. Norris, Robson said the appeals court seemed to require a lesser burden of proof on the state, in a case involving the length of an inmate’s hair. In the Eight Circuit decision in Holt v. Hobbs, it said the despite citations from Holt that prisons in other jurisdictions met security needs while allowing inmates to maintain facial hair, they didn’t “outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions.”

Another factor in the case, when it gets heard at the Supreme Court, is a prior high court ruling called Cutter v. Wilkinson from 2006. In that decision, a unanimous court said constitutional problems could arise if RLUIPA were enforced improperly, or if religious exercise and security concerns weren’t properly balanced.

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