Holt v. Hobbs: The compelling interest standard and religious dress and grooming exemptions
The recent Supreme Court decision of Holt v. Hobbs sheds some light upon a long line of decisions struggling with the questions of when, where and whether the government may constitutionally interfere with an individual’s right to freely exercise his or her personal religious beliefs, especially when such exercise involves adhering to specific grooming guidelines or adorning articles of faith, and what standard applies when making such a determination.1
Gregory Holt, a devout Muslim inmate at an Arkansas prison, was wrongfully denied the right to wear a one-half-inch beard in observance of his religious beliefs.2 Prison officials denied Holt an exemption from the Arkansas Department of Correction’s (the DOC) grooming policy prohibiting prisoners from growing beards.3 Holt challenged the denial of his request to wear a short half-inch beard in federal court as a violation of his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc, et. seq. (RLUIPA).4
Section 3 of the RLUIPA “provides that ‘[n]o government shall impose a substantial burden on the religious exercise’ of an institutionalized person absent a demonstration by the government that the burden in question ‘is the least restrictive means of furthering [a] compelling governmental interest.”5 A discussion of the RLUIPA requires a brief review of its statutory predecessor, the Religious Freedom Restoration Act of 1993 (RFRA). Congress enacted the RFRA under Section 5 of the Fourteenth Amendment as a reiteration of the First Amendment right to free exercise of religion, to “provide a claim or defense to persons whose religious exercise is substantially burdened by government.”6 The standard set forth in the RLUIPA was originally codified in the RFRA “to provide greater protection for religious exercise than is available under the First Amendment.”7 In 1997, the Court struck down portions of the RFRA in City of Boerne v. Flores on the grounds that Congress lacked the authority under Section 5 of the Fourteenth Amendment to apply such a standard generally to the states.8 The RFRA now applies only to review of federal statutes.9 In contrast, the RLUIPA focuses on areas of valid congressional authority: land-use regulation and religious exercise by institutionalized persons.10 The RLUIPA provides prison inmates, like Gregory Holt, with an avenue “to seek religious accommodations pursuant to the same standard set forth in RFRA.”11
In a unanimous decision reversing the decision of the DOC, the Supreme Court, finding that the parties did not dispute the sincerity of Holt’s religious beliefs, looked to whether the grooming policy substantially burdened those beliefs.12 The Supreme Court reasoned that, if Holt were to disobey the grooming policy, he would likely face severe disciplinary consequences, which would force him to choose between his religious beliefs and his physical and mental well-being and such a choice constitutes a substantial burden on Holt’s religious exercise.13 The burden then shifted to the DOC to show that the grooming policy reflected “the least restrictive means of furthering a broadly formulated interest,” which the DOC submitted to be, chiefly, prison safety and security.14 The Court recalled the recent decision of Burwell v. Hobby Lobby, where the Court interpreted the RFRA standard as one mandating a “‘more focused inquiry and requires the government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person—the particular claimant whose sincere exercise of religion is being substantially burdened.”15 The DOC argued the grooming policy had been designed to serve the compelling interests of safety and security by preventing inmates from growing beards with the potential to hide contraband or create an easy disguise following escape from the facility and exempted inmates from its requirements only on the basis of a dermatological condition.16 The Court found first that the DOC’s interest in reducing the possibility of contraband could not “sustain its refusal to allow petitioner to grow a ½- inch beard,” noting that “without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a ½-inch beard actually furthers the Department’s interest in rooting out contraband.”17
The Court rejected the DOC’s argument that permitting religious exemptions to the policy could create a possibility that escaped inmates could create a quick disguise by shaving their beards, noting that to protect against this potential risk, numerous other prisons permitting facial hair utilized specific documentation methods.18 While declining to mandate that the prison create a rarely enacted religious exemption to its grooming policy, the Court reviewed myriad ways in which prisons may maintain security in harmony with the substantial religious freedoms afforded under the RLUIPA.19 In reversing the Eighth Circuit Court of Appeals affirmance of the District Court’s agreement with the DOC’s decision, the Court reminded other courts that they “must hold prisons to their statutory burden, and they must not assume a plausible less restrictive alternative would be ineffective.”20
The four-part compelling interest test was initially set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In Sherbert v. Verner, the Court required the government to demonstrate a compelling interest before denying unemployment compensation to a fired employee due to a conflict between her religion and her work schedule.21 The Sherbert opinion admonished those who would provide a mere glance at issues concerning freedom of religious exercise, noting that “it is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area.”22 This holding triggered a line of cases that would struggle with the question of whether and how to apply the compelling interest standard in Free Exercise cases.
In Wisconsin v. Yoder, the Supreme Court invalidated a mandatory school attendance law as applied to Amish families who refused to send their children to school past the eighth grade.23 Notably, Yoder created the “hybrid-right” exception, stating that “when the interests of parenthood are combined with a Free Exercise claim,” there must be “more than merely a reasonable relation to some purpose within the competency of the State is required to sustain the validity of the State’s requirement under the First Amendment.”24 In deciding to exempt Amish parents from the Wisconsin law, the Court defended a longstanding “tradition of parental concern for the nurture and upbringing of their children.”25
In Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court confronted a challenge to a decision by the Employment Division of Oregon to deny terminated employees unemployment compensation after finding that those employees used peyote during the course of a sacred ceremony at the Native American Church in violation of the Oregon controlled substance statute.26 The employees in question, however, argued that the statute violated the Free Exercise Clause by prohibiting religious use of peyote.27 The Smith Court declined to apply the compelling interest test on the grounds that it was “not remotely comparable” to the facts of the Smith case and further stated that it would uphold generally those laws imposing burdens on the free exercise of religious beliefs, so long as the law in question did not single out a religious belief for uniquely unfavorable treatment.28 The Court went on to remark that the objectives served by the compelling interest test in other areas of law, such as “equality of treatment, and an unrestricted flow of contending speech” are what the Court deemed to be “constitutional norms,” but use of the compelling interest standard in the Smith case would only produce “a private right to ignore generally applicable laws—is a constitutional anomaly.”29
The compelling interest test is one that the lower courts have grappled with applying for decades in the context of religious exercise—particularly in the area of regulating religious garb and religious grooming customs in certain public venues, such as the classroom and the courtroom. In Menora v. Illinois High School Association, the Illinois High School Association, a private association with a membership comprised mostly of public high schools, enacted a generally applicable, facially neutral rule prohibiting basketball players from wearing hats or other types of headgear while competing.30 The rule was designed to promote player-safety during games.31 On appeal, the Seventh Circuit upheld the general rule, but remanded the case to the district court with instructions to allow the Jewish students the opportunity to design a secured head covering that complied with Jewish law.32 In writing for the majority, Judge Richard Posner found that “free exercise of religion does not mean costless exercise of religion, but the state may not make the exercise of religion unreasonably costly.”33 Despite this allowance, Judge Posner still reasoned that the association policy did not constitute an undue burden on the Jewish student’s right to free exercise because the policy was designed in the interests of safety while playing sports.34
In La Rocca v. Lane, the New York Court of Appeals upheld a trial court’s order prohibiting a Roman Catholic priest and lawyer—Father Vincent La Rocca— from wearing his collar while serving as a Legal Aid Society attorney in a criminal trial.35 The court held that regulating the priest-attorney’s attire was “reasonably related to the preservation of order and decorum in the courtroom, the protection of parties and witnesses, and generally to the furtherance of the administration of justice.”36 Despite the ruling against him in La Rocca v. Lane, Father La Rocca represented another defendant on behalf of the Legal Aid Society, while wearing his Roman Catholic collar during trial.37 After a series of conflicting orders regarding Father La Rocca’s adornment of his clerical collar in the courtroom, the Second Circuit ruled against the priest-attorney, noting that “a lawyer, unlike a witness or party, does not speak for himself but for his client.”38
Unlike her attorney, a party to an action does retain the freedom to freely exercise religious beliefs by wearing religious garb in the courtroom.39 In Close-It Enterprises, Inc. v. Weinberger, a trial judge ordered that the defendant, Mayor Weinberger, remove a Jewish skullcap before the jury entered the courtroom, even though Weinberger had been present for jury selection while wearing the same skullcap.40 When forced to decide between being present for his own trial and wearing his religious garb, Weinberger excluded himself for the remainder of the trial proceedings.41 In reversing the trial court’s verdict against Weinberger and ordering a new trial, the Appellate Court harshly reviewed the lower court’s proceedings, noting that the trial was more akin to an “inquest,” and that “the defendant’s right to the free exercise of religion, under the circumstances presented, was not outweighed by the right of all parties to a fair trial.”42 The Close-It Enterprises Court further stated that the defendant “should not have been placed in the situation of having to choose between protecting his legal interests or violating an essential element of his faith.”43 Close-It Enterprises illustrates how religious garb cases turn on the context of the request. In these cases, while both parties hoped to wear religious garb in the court room, the nature of the individual’s role in the courtroom proved definitive.
Before Holt, the Court’s decision in Goldman v. Weinberger arguably illustrates the nearest the Court has come, until now, to addressing the question of when dress code policies which ban religious garb violate the Constitution.44 There, Captain S. Simcha Goldman, an Orthodox Jew, ordained rabbi, and Air Force captain, served as a psychologist at March Air Force Base.45 At all times, he wore a yarmulke in accordance with Jewish religious tradition.46 Pursuant to comprehensive Air Force regulations regarding the service uniform and headgear, Goldman was ordered to cease wearing his yarmulke.47 Goldman argued that the Air Force was required, pursuant to the Free Exercise Clause of the First Amendment, to make an exception to the dress code unless such an exception created “a ‘clear danger’ of undermining discipline and esprit de corps.”48 The D.C. Circuit Court of Appeals reversed the decision.49 In a 5-4 decision, the Supreme Court affirmed, finding that Air Force regulations did not violate the Free Exercise Clause because the regulations reasonably and evenhandedly regulated dress in the interest of the military’s perceived need for uniformity and discipline.50
While the twin notions of religious freedom and secularism, in theory, ideally function together fluidly, the reality is that these two principles do not always strike an accord. What, then, does it mean to provide American people with the freedom to exercise religion? In Burwell v. Hobby Lobby, the Supreme Court held that under the RFRA standard, free exercise includes a corporation’s right to exclude contraceptive methods from employee health care plans, as required by the Affordable Care Act, on the basis of religious principles prohibiting the use of contraception.51 In concurring with the Hobby Lobby decision, Justice Kennedy speaks broadly of the essential role that the Free Exercise Clause plays in the history and the very fabric of the United States:
Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.52
In a political climate where the delicate interests of religion and government continue to collide both domestically and internationally, the Holt decision renews the promise of the First Amendment by demonstrating that all Americans, even prison inmates, are entitled to the right to freely exercise religious beliefs and by reminding our courts to review challenges to this essential American freedom with a particularly careful eye. ■
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